Whitcher v. Town of Peacham ( 1879 )

The opinion of the court was delivered by

Veazey, J.

One issue in the County Court was the question of settlement. The plaintiff claimed that if all the defendant’s evidence on that point was true, still they had failed to make out a settlement. The court decided to submit the question to the jury; to which the plaintiff excepted. The parties went through with all the forms of a settlement and payment. The selectmen testified that they supposed it was a settlement of all claim. There was some testimony tending to show that the plaintiff admitted and stated to several persons subsequently to the alleged settlement, that he had settled with the town. The plaintiff insists that the return of the town order annulled all former arrangements between the parties. We do not think it had that effect. The plaintiff held the order about six months, and until the old 'board of selectmen had gone out of office, and then took it to one of the new board, who had had no part or knowledge in the matter. It does not appear that any action was taken upon it by the new board. The return, under all the circumstances developed in the exceptions, left the question of settlement still open. As the question comes up on this bill of exceptions we have nothing to do with the weight of the evidence. In a case of this kind, as stated by Phelps, J., in Jones v. Booth, 10 Vt. 268, 272, and repeatedly followed in subsequent cases, the only question for our consideration is, whether the evidence relied on by the defendants had a legitimate tendency to sustain the issue on their part. In our view, the defendant’s evidence tended not slightly, but substantially, to sustain their claim of settlement. Therefore it was the duty of the court to submit that question to the jury as was done.

There was also a motion to set the verdict aside, and for a new trial, on the ground that some of the jurors saw the horse during the trial as they were passing into court, and stopped to examine it. The fact was known immediately, and became the subject of investigation by the court, participated in by the plaintiff’s counsel. No demand was made by the plaintiff after this investigation to have the jury discharged and a new panel called ; no objection was made to proceeding with the trial. If the jury had found that there was no settlement, and that the plaintiff was entitled to recover, this examination of the horse might possibly have had some influence on their minds on the question of damages, but it is difficult to see how it bore on the question of settlement. But however this may be, and whatever the plaintiff’s rights might have been if he had objected to the further trial of the ease by that panel, which it is not necessary to decide, we think that by the course he took he waived the right to take advantage of the conduct of the jurors. He elected or consented to go on with the trial, knowing all the facts that are now known constituting the alleged improper conduct of some of the jurors ; and has not suffered thereby. We by no means intend to indicate any disposition to modify the strict and wholesome rules heretofore adopted in this State and elsewhere in respect to the conduct of jurors. The case is plainly distinguishable from that class cited by the plaintiff’s counsel where books and documents have got into the jury’s hands during their deliberations, either with or without the consent of the court. This is a case where we think* it affirmatively appears that the plaintiff suffered nothing from the alleged misconduct of the jurors, and where he waived any right to question their conduct.

Judgment affirmed.