Nichols v. Fisk

The trial judge, in one of the several parts of the charge excepted to, summed up the plaintiff's testimony as to the terms upon which he was to receive $10,000 for his indorsements, as follows: "The first time that Mr. Nichols went over it he spoke of it as being paid out of the profits of the scheme, and the second time, upon cross-examination when pressed more fully by counsel for the defense, he said why, no, it was not the profits of the scheme, it was the sale of the properties."

So far as we can see the only substantial question on this appeal is whether the plaintiff's cross-examination is fairly susceptible of the interpretation which the trial court thus put upon it, and which the jury evidently accepted as its true significance. If so, it affords a sufficient basis for the charge and the verdict.

That part of the cross-examination which the trial court referred to, is as follows: "Q. Wasn't that the first statement he made? A. I beg pardon. Q. If the bonds were sold, or when they were sold, he would give you $10,000? A. Not bonds alone; when the properties were disposed of; I think the properties were included in it, the whole thing. Q. Didn't he say in the first statement he made to you that if the bonds were sold, or when they were sold, he would give you this $10,000? A. As I recollect it, it was when the bonds were sold and the whole property was disposed of, then the payment would be made. Q. You said in your direct testimony, did you not, that when the bonds were sold you would ___ A. I might have said bonds. I might have been a little careless about it."

Defendant's claim is that this cross-examination relates to the time when the money was to be paid, and not to the fund out of which it was to be paid.

Assuming that the testimony is on its face capable of the construction which the defendant puts on it, the issue as to the proper significance of oral testimony is primarily one of fact for the jury. They have put their own construction on it, and the only question now open is whether they exceeded the bounds of reason and fairness in doing so. If it were necessary to support their construction by analysis, it would be enough to point out that the cross-examiner himself framed his question in the alternative, "if the bonds were sold, or when they were sold," and put the two phrases together as if they were two different ways of saying the same thing.

There is no error.

In this opinion the other judges concurred.