Holbrook v. Holbrook , 30 Vt. 432 ( 1858 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. Under the decisions in this state, we see no reason to question the right of the plaintiff to recover the forty dollars paid for the share of the heir in the estate of a person supposed to be dead, but who was, in fact, alive, the jury having found an express contract to refund the money in that event, although the conveyance was a mere quit claim. | It is not contradicting the essential import of a deed to show the agreed price of the land. And tliis may always be shown, although it do contradict the recitals in the deed, as has often been decided in this state. Beach v. Packard, 10 Vt. 96; Lazell v. Lazell, 12 Vt. 443; White v. Miller, 22 Vt. 384.

II. As to the testimony given in-regard to the declarations of Mr. Kellogg, that if the party was alive, as he was then told was the fact, the defendant must pay back the money, although somewhat equivocal, and susceptible of being regarded as a mere expression of opinion upon the law, or the morality of the case, yet when taken in reference to his connection with the transaction, and the testimony which he gave, and which came'from other witnesses, in regard to the original contract, it seems to us that the more natural construction of it was that it had reference to the agreement to refund in that event, did tend to show that at the time he made the declaration he recollected more distinctly the transaction than at the time he gave his testimony. In that view it was properly received and the jury must judge of its fair import, in connection with all the other facts in the case. As it appeared to have reference to the important inquiry in the case, it could not be rejected as collateral, and there being no objection to the charge of the court in regard to the evidence, we cannot regard it as error to admit the evidence. Judgment affirmed.