Young v. Tibbitts , 32 Wis. 79 ( 1873 )

Dixon, C. J.

Whether tbe first request to charge made by counsel for the defendant Tibbitts was correct or not, or should have been granted, we are relieved from deciding, since there was another, tbe refusal of which was, in our judgment, clearly erroneous, and must result in a new trial. The general rule of law, and its qualifications, applicable where unimpeached witnesses testify distinctly and positively to a fact and are uncon-tradicted, is thus stated by the court of appeals in Elwood v. The Western Onion Telegraph Co., 45 N. Y., 553: “It is undoubtedly the general rule, that where unimpeached witnesses testify distinctly and positively to a fact and are uncontradicted, their testimony should be credited, and have the effect of overcoming a mere presumption. (Newton v. Pope, 1 Cow., 110; Lomer v. Meeker, 25 N. Y, 361.) But this rule is subject to many qualifications. There may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The general rules laid down in the books at a time when interest absolutely disqualified a witness, necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law, be added. And furthermore, it is often a difficult question to decide when a witness is, in a legal sense, uncontradicted. He may be contradicted by circumstances, as well as by statements of others contrary to his own. In such cases, courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached.”

The other request to instruct, which we think was erroneously refused, was in these words: “ It is not legally necessary that a published notice in a newspaper should be given of a dissolution. If notice reaches the dealers with the old firm in any way which advises them of the fact, and which is enough to put them on inquiry, that is enough.” It was in evidence by the testimony of the plaintiff himself, that he was in the habit of daily reading the newspaper in which the notice was published showing the formation of the new firm and consequent dissolution of the old. The plaintiff testified that such was his habit at the time that notice appeared. It is true, it was not a formal notice subscribed by the parties, but it was nevertheless authorized by them, and corresponded with the facts as they are now claimed or shown to have been. Had the jury found that the plaintiff saw and read the notice, such as it was, that would have been sufficient to put him upon inquiry. Eormal and precise or unequivocal announcement to a dealer with the old firm, either by publication read by him or otherwise, was not ñeccessary in order to affect him with notice of the dissolution. The rule respecting notice in such cases differs not from that which governs in others. It is, that knowledge of any fact, however informally acquired, such as ought to put an ordinarily cautious and prudent man upon inquiry, will suffice; and the party having such knowledge will be chargeable with notice of whatsoever other facts further reasonable investigation or prosecution of the inquiry would have disclosed. It seems to have been supposed by the court below that the newspaper notice, if brought to the attention of the plaintiff, would have been insufficient to put him upon inquiry at the time he received the note. In this, as already observed, we think the court was mistaken.

But it was furthermore in evidence, by the testimony of the defendant Dowe, that he gave the plaintiff direct and positive notice of the dissolution at the time of executing the note. It is likewise true that the plaintiff as positively denied it; but that was a question of veracity for the jury. With such evidence before the jury, it was the duty of the court to have given the instruction; and there was nothing in the general charge subsequently made which cured the defect. The general charge was in these words: “ Now if you believe Mr. Young had direct notice, or knew of it in the course of his business, before the note was executed, that the firm of Dowe & Tibbitts was dissolved, and that Mr. Dowe, at the time of executing this note, had no further business connection with this firm, then I don’t think the plaintiff could recover in this action. But if you find from the testimony that Mr. Young acted upon a well grounded belief that the firm still existed, and had no legal notice, then the question of the existence or nonexistence of the partnership would not affect his rights at that time."

It may be said that the charge correctly submitted and disposed of the question of direct notice, and we are inclined to think that it did; but it clearly excluded the supposition or finding that there could be any other notice, unless it was acquired by the plaintiff in the course of his own business. It was not in testimony by the plaintiff that he did not read or had no knowledge of the notice published in the newspaper; and other parts of the charge indicate that it was wholly immaterial in the opinion of the court, even if the plaintiff had read or did know the contents of the notice. The jury were told it was “ not a notice emanating from the parties; ” that the partnership between Dowe and Tibbiits “was a private arrangement; ” and that “ there was no written agreement, and no notice given in the newspapers of the formation of it, and no notice of the dissolution of it, and it was only a dissolution between themselves.”

The evidence before the court and jury was such as made the request to instruct pertinent and proper; and the mistake, as has been seen, was not obviated by anything contained in the general charge. If the plaintiff had not seen or read the notice in the newspaper, it was easy for him so to have testified. He did not so testify, and the question of notice acquired through the publication or otherwise, should have been submitted to the jury in terms as requested; and for this error the judgment must be reversed, and a new trial awarded.

By the Court.— It is so ordered.