Anderson v. Dutton ( 1927 )

Neither in plaintiff's opening case nor in defendant's testimony in chief was there evidence tending to show payment of the check as pleaded in defense of the action, sufficient on which to submit that question to the jury. At most in such respect, defendant testified in chief that he tried to settle with plaintiff and told him that he (defendant) would give him (plaintiff) his note if he would give defendant the check; that he had previously demanded payment of the note. But defendant did not testify in chief that at the time of such attempted settlement or subsequent thereto he delivered said note to the plaintiff, nor that plaintiff agreed to such settlement or payment. But plaintiff's attorney, not being content to leave the question upon defendant's testimony as it then stood, cross-examined him regarding the matter, showing by his direct and positive testimony that on the occasion mentioned he gave the note up to plaintiff, but not in payment for the two cows. And to the further question in cross-examination, as to which was true, that he gave plaintiff the note in payment of the check or in payment for the cows, defendant answered: "He told me that it was up to me to make the check good."

In rebuttal, plaintiff testified that defendant delivered the note to him, and he (plaintiff) then settled the note, but did not exchange or agree to exchange the check for the note, the check remaining unpaid. In further rebuttal, the plaintiff, improving his wife as a witness, showed by her that she was present on the occasion when, by the testimony of each party, the so-called settlement or payment, whatever it was, took place, and then asked her the question: "Can you tell whether that note was figured in settlement and payment of the cows?" Her full answer was, "Yes, sir." Neither party asked the witness to state what the fact was as to the note being so "figured," nor did she state. The relation existing between the plaintiff and the witness was such that presumably the former had peculiar knowledge of what the answer of the latter would be if asked to state the fact as she knew it. For some reason, not appearing of record, plaintiff deemed it not expedient to elicit her testimony in that particular respect, though material because of its strong, and in one event conclusive, bearing upon the issue as to whether or not the check had been paid as pleaded and claimed by defendant. In the circumstances of the case, the failure of the plaintiff to produce such testimony, peculiarly within his knowledge, raised a strong inference which the jury had a right to consider, that had such testimony been produced it would have been unfavorable to him. Seward v. Garlin, 33 Vt. 583; State v.Smith, 71 Vt. 331, 45 A. 219; In re Will of McCabe, 73 Vt. 175,50 A. 804; McKinstry v. Collins, 74 Vt. 147, 52 A. 438; 10 R.C.L. 885. The general rule that a party is not prejudiced by failure to produce the testimony of a witness equally available to both parties does not apply; for the wife of a party is not regarded an equally available witness for the other party, within that rule. Carpenter v. Pa. R.R. Co., 13 A.D. 328,43 N.Y.S. 203; 22 C.J. 120. See, also, Milliman v. Rochester R. Co., 3 A.D. 109,39 N.Y.S. 274, 276.

Nor was such inference neutralized by defendant's failure to ask the witness after she was turned over by plaintiff for cross-examination, to state whether in fact the note was figured in settlement and payment for the cows. It does not appear from the record that defendant had any opportunity to find out from the witness what she would testify to in such respect, before she took the witness stand — whether she would tell the truth. Consequently, it does not appear that her testimony was not peculiarly within the knowledge of the plaintiff. McKinstry v.Collins, supra. See, also, Western, etc., R.R. Co. v. Morrison,102 Ga. 319, 29 S.E. 104, 40 L.R.A. 84, 66 A.S.R. 173.

As the case stood at the close of all the evidence, there should seem to be no doubt that the evidence was sufficient to go to the jury on the question of the payment pleaded by defendant. We think the evidence bearing on this issue affords room for opposing inferences upon the part of reasonable men, and therefore it was proper to submit the question to the jury. Ide v. Boston Maine R.R., 83 Vt. 66, 82, 74 A. 401.

Judgment affirmed.