Fletcher v. Fletcher's Estate

47 A. 777, 72 Vt. 268, 1900 Vt. LEXIS 131

• Court: Supreme Court of Vermont
• Decided: May 23, 1900
• Status: Published

Opinion

Taft, C. J.

Two questions are raised under the exceptions.

I. The first item sought to be recovered was less than ten years old and the court were requested to charge that payment might be presumed from lapse of time. The court omitted to so charge. If a presumption of payment ever arises as matter of law from lapse of time, it never does in so short a period as ten years. It does not arise, as matter of law, short of a period of twenty years ; and even then it is but a presumption, subject to be removed by evidence. The request was properly denied.

II. Herrick testified that during the time it was claimed Ormond was holding Sarah’s money, he loaned money to the town,thereby rendering it improbable that he kept her money. The cross-examination made it certain that the transaction was a loan, by showing that a note was given for the money and was an aid, instead of harmful, to the defendant. There was no error in permitting the cross-examination.

The petitionee concedes that in respect to the item of $245.00 included in the judgment a new trial should be granted, and proffers a remittitur of that sum from the judgment. There is no testimony in support of the petition for a new trial in respect to the sum of $183.88. Therefore if a remittitur is entered, judgment may be affirmed with damages of $183.88 with interest since 1 Oct., 1898, and costs — and ordered certified to the Probate Court.

The petition for a new trial dismissed, with costs to the petitioner.