Duguid v. Ogilvie

1 Abb. Pr. 145, 3 E.D. Smith 527

• Court: New York Court of Common Pleas
• Decided: December 15, 1854
• Status: Published

Opinion

Daly, J.

There was no error in the referee’s allowing additional evidence to be given after the case was summed up and submitted to Mm. It appears to have been done upon Ms own motion, and was confined to a particular point. The plaintiff, long after he had performed the services for which he sought to recover, gave the defendant his promissory note of §75, and paid it when it fell due. This appearing in evidence, unaccompanied by any explanation, warranted the presumption that nothing was due to the plaintiff when he paid the amount of this note to the defendant. (De Freest v. Bloomingdale, 5 Den., 304). It was in the discretion of the referee to allow the plaintiff, even after the cause was submitted, to remove tMs presumption by showing the circumstances under which this note was given and paid. It was held in Cleaveland v. Hunter, (1 Wend., 104), that after a cause was submitted, and the referees had retired, they might •open the case to hear further testimony. In the present case the parties were fully notified as to what extent further testimony was to be allowed. The additional testimony consisted in the examination of. the defendant himself alone. It has satisfactorily explained why the note was given and paid; ■and having thereby tended to- promote the ends of justice, it would evince on the part of the court a disregard of the chief ■end and aim of any legal investigation to set the referee’s report aside upon that ground.

The evidence of the defendant showed that this note was given for money borrowed of the defendant by the plaintiff upon a pressing emergency, for twenty-five days, and for which he offered to pay additional interest. The defendant having been placed on the stand as a witness by his adversary, it was competent for him, if such was the fact, to prove that the claim for services had been adjusted and paid, or give in evidence any act of the plaintiff, or any conversation, between himself and the plaintiff, from which it might be inferred that the payments made to the plaintiff, were received by him in full satisfaction of his claim. Not having done so, it may fairly be presumed that the claim for services remained unadjusted, and that the giving, and the payment of the note, was a separate and distinct transaction, upon which no presumption could be founded as to the real state of indebtedness between the parties.

The evidence in respect to the value of the services, was conflicting, and. in such cases we never interfere, though I confess I am unable to decide upon what basis the referee-fixed the value of the services, as he appears to have done at $210. Some of the witnesses estimated the value of the services at a higher sum, others at a lower, and we cannot say that he erred in abating something from the estimates of the-former in deference to the opinions of the latter, or in adding something to the estimates of the latter in deference to the opinions of the former.

Judgment affirmed.