Phœnix Insurance Co. v. Sholes , 20 Wis. 35 ( 1865 )

Downer, J.

The court below erred in not requiring the witness Booth to answer the questions put to him to prove that he had an interest in the notes on which the suit was brought, and what that interest was. Section 50, ch. 137, R. S., provides that such interest may be shown for the purpose of affecting the credii of the witness. The counsel for the appellant also assigns for error, that the circuit court erred in giving the following instruction: “ That as it appeared from the testimony of Booth that he sent the two notes in suit to the plaintiff in a letter with a request that the plaintiff should discount them and apply the proceeds to the payment of certain interest about falling due from him to the plaintiff on the mortgage, or to hold the notes as collateral security to the payment of said interest ; and it furthermore appearing, from the testimony of said Booth, that he received, in reply to his communication, the letter dated at Hartford, 25th of May, 1859, and signed by S. L. Loomis, President: that such reply did not operate as an acceptance of Booth’s proposition, inasmuch as he was informed that his proposition was to be submitted to the action of the Board of Directors. I am therefore of opinion that after this notification it was incumbent on the plaintiff to signify to Booth its acceptance of the proposition contained in his letter ; that after the receipt of Loomis’s letter by Booth, silence on the part of the plaintiff would not be a sufficient acquiescence to constitute a contract, and Booth had a right to make such disposition of the notes as he pleased, after a reasonable time had elapsed; and the plaintiff could not recover in this action.” If this instruction had been based upon all the testimony bearing upon the point, and the court had instructed the jury that if they found the testimony true, they should find for the defendants, it would have been correct. Eor Booth testified that he received a second letter from Loomis, stating that Kellogg, the secretary, would be on in a few weeks and arrange the matter; that Kellogg came, and he called his attention to the notes in question, and Kellogg said they did not want them, and never held them as security, and promised to send them to Booth by mail. If; when the company received the notes by mail from Booths] no answer had been returned within a reasonable time, the law ' would have implied a contract on its part that it received them '• on the terms mentioned in Booth’s letter enclosing them.' There is nothing in Loomis’ letter to alter this rule, unless where he says, referring to Booth’s proposition and the notes, “ It is a subject for the action of directors, and will be submitted to them to-morrow.” If Booth had not heard anything further from the company within a reasonable time, it appears to us the rule would be still, that the silence of the company might and should be construed into an acceptance of his proposition.

But although the court erred in giving this instruction, it does not follow that the instruction asked by the plaintiff, that the acceptance of Booth’s proposition might be inferred from the silence of the plaintiff, should have been given. That, as well as the instruction given, does not embrace and is not founded upon all the material testimony bearing upon the point, but ignores testimony which, if true, would change the rule, and for that reason was rightly refused.

By the Court — The judgment of the circuit court is reversed, with costs, and a venire de novo awarded.