McConnel v. Dilworth

Opinion by

Beaver, J.,

As was said by the trial judge in the court below, in admitting the testimony embraced in the offer, the admission of which constitutes the first assignment of error, the question involved is one of fact. It was a disputed fact. The stock in a building association, belonging to Waldon, was claimed by the plaintiff under an assignment and by the defendants under an attachment issued prior to the assignment. The attachment was dissolved and a second attachment issued which was subsequent to the date of the assignment. The validity of the assignment was, therefore, the vital question. As to the circumstances attending it, the plaintiff and Waldon who made it, both of whom were examined as witnesses, differed radically. Waldon, as between the parties to this issue, is disinterested.

Defendants offered to show that in the second attachment the attorneys of the plaintiff claimed the benefit of the exemption law for Waldon, the plain inference from which would have been that the plaintiff had not full confidence in the validity of his assignment. The evidence contained in this offer, however, was, upon objection, ruled out. If this evidence had been admitted, there might have been such corroborating circumstances as would have enabled a jury to reach a satisfactory conclusion as to the validity of the assignment. The court directed the jury to find for the plaintiff. In this we think there was error. If the evidence contained in the offer which was refused, as complained of in the second assignment of error, had been received, there would have been sufficient evidence to carry the case to the jury.

There was no error in failing to answer the defendants’ points. They assumed too much and their affirmance would have been as erroneous from the plaintiff’s point of view as were the instructions to find.for the plaintiff from the defendants’. The case, when the facts are all in evidence, being for the jury, the court erred in directing a verdict for the plaintiff. Judgment reversed and a new venire awarded.