Whipple v. Stevens

22 N.H. 219

• Court: Superior Court of New Hampshire
• Decided: December 15, 1850
• Status: Published

Opinion

Woods, J.

The defendant was not in fact present at the caption of the deposition of Dustin. But the certificate of the magistrate shows that, although Stevens was not present, yet he was duly notified, and caused the deponent to be cross-examined, and an exception to be made and certified, touching the caption. The defendant availed himself of all the rights, and advantages usually enjoyed or exercised, in virtue of a notice, or by reason of being personally present. Questions were propounded to the witness, by the commissioner, and the answers of the witness thereto were taken; and that, too, by the direction of the attorney of the defendant; and we deem it a proper and legitimate inference, that the objection to the deposition was stated by the commissioner upon a like request. After having thus availed himself of every advantage usually resulting from a notice and personal presence, we think the defendant may well be regarded as having been present. He is not, under the circumstances, to be heard to say that he was not present. He caused the commissioner to act for him, and in his behalf, to a certain extent, — as far as he deemed it useful; and, whether that course was proper or not, on the part of the commissioner, it does not lie with the defendant to allege its impropriety, or to claim exemption from its ordinary effect upon his legal rights. The question then recurs, whether the objection taken to the deposition can prevail. If not well taken at the caption, it was too late to take it at the trial. The objection taken at the trial was upon the ground- that the question .propounded to the witness was a leading question, and it is admitted that such was its character. In Whicker v. Whicker, 11 N. H. Rep. 856, it is said, that on the taking of a deposition, a leading!-question must be objected to at the time it is put to the witness; because, if objected to then, the question might havb been varied, and addressed to the witness, free from any objectionable character. So in Woodman v. Coolbroth, 7 Greenl. Rep. 181, it is said, that “ a leading interrogatory, in a deposition, taken when both parties are present, must be objected to at the time it is put to the witness, if at all.” A similar rule is laid down in Sheeler v. Spear, 3 Binn. 180. See, also, Anon. 2 Pick. 165 ; and Daniell’s Ch. Prac. 1047, note (2). And it is a well settled general principle of law, that a party knowing of an objection, of the character of that under consideration, which, if brought to the attention of the opposite party might be ob" viated, shall not be allowed to make it at a subsequent time, when it cannot be remedied. Gear v. Smith, 9 N. H. Rep. 68. In such case the exception is regarded as waived. A different rule of law, would open a wide door to fraud and injustice. The exception taken at the trial was therefore properly overruled.

The objection stated in the caption is too general to avail the defendant. It was “ to the foregoing deposition, .both as to the form in which it was taken, and the matter testified to.” If it had been to the leading character of the particular interrogatory, the form might have been changed, and the objection obviated. Such a specification of the ground of objection could alone establish a right in the party to insist upon the same objection at the trial. By the general form in which the objection was taken, the party was left to conjecture upon which of many specific objections that might be embraced in it, the party making it, intended to rely. An exception taken even at the trial, if the ground be not specified, will not avail a party to set aside a verdict ; and particularly so, if it is of a formal character. McConihe v. Sawyer, 12 N. H. Rep. 396. By such omission to specify the particulars of the exception, and to draw the attention of the other party unmistakably to them, it will be regarded as waived. We are, therefore, clearly of the opinion, that the ruling of the Court below, allowing the deposition to be given in evidence to the jury, was correct.

The deposition of Horace Ames was produced by the defendant, and used upon the trial. The second question and answer were objected to, and the objection was sustained by the Court. The ground of the objection was, that they were immaterial and irrelevant, inasmuch as they related wholly to a release given by the defendant to the witness, in order to render him competent to give testimony in the cause ; and it is'to be taken upon this case, that such was the nature of the question and answer, and that the same had no bearing upon the issue to be tried. No doubt exists of the correctness of the ruling rejecting the evidence, and that it can furnish no ground for setting aside the verdict. It is well settled, as a general rule, that the admission of immaterial evidence, furnishes no ground for a new trial. Norris v. Badger, 6 Conn. 449 ; Hamblett v. Hamblett, 6 N. H. Rep. 333, and cases cited. If the admission of evidence, wholly immaterial and irrelevant to the issue,- forms no ground for setting aside a verdict and granting a new trial, it would seem- difficult to find any reasonable principle, upon which its rejection could justify a claim of right to a new hearing.

The effect of the ruling of the Court was, at most, to withhold from the jury evidence which did not tend to prove the issue to be tried. The party was not deprived of the benefit of any competent evidence. Most assuredly, the rejection of incompetent and irrelevant proof, can never form a ground for setting aside a verdict. The mere statement of the case shows that the exception is idle, and cannot therefore be sustained.

A further, and more important and difficult question than either of the others, remains to be decided. The note declared on was the joint note of the defendant and Horace Ames. The defendant was the principal debtor, and Ames his surety. It is to be assumed upon the charge of the Judge, in the court below, and upon the finding of the jury, that in July, or August, 1842, Horace Ames, the surety, out of his own funds, paid a sum of money upon the note, in part payment thereof, in the presence of the defendant, and that the defendant knew and understood what was done, and said nothing in relation thereto. And the question raised upon the case is, whether it was competent for the jury to infer, from those circumstances, a new promise by the defendant to pay the balance of the note. It is well settled that a partial payment of a debt amounts to an acknowledgment of a present subsisting debt, which the party is liable and willing to pay; from which, in the absence of any act, or declaration, on the part of the party making the payment, inconsistent with the idea of a liability and willingness to pay, a jury may and ought to infer a new promise. Sigourney v. Drury, 14 Pick. 387 ; Bell v. Morrison, 1 Peters, 351; Exeter Bank v. Sullivan, 6 N. H. Rep. 124. And it is equally well settled here, that a partial payment by one of two joint debtors, in the absence of the other, is not sufficient to take a case out of the operation of the statute of limitations, as to the other debtor. Exeter Bank v. Sullivan, 6 N. H. Rep. 124. The question is now made, whether a payment made by the surety in the presence of the principal debtor, who well knows and understands the fact, but who neither expressly assents thereto nor dissents therefrom, but who in fact says nothing in relation to it, can have the effect to take the case out of the statute as to the principal; or, in other language, will furnish competent evidence of a new promise, on the part of the principal debtor. It may be proper here to notice the fact, that the note had run less than two years, when the payment was made which is relied upon to take the case out of the operation of the statute.

The note was dated October 23,1840, and the payment was made in July, or August, 1842 ; and consequently the right of action, at that time, was not barred by the statute. The surety, then, had a clear right to make the payment which he did make upon the note, and thereby entitle himself to an action to recover of the defendant the amount paid. It may then well be regarded as a payment made with the implied assent of the defendant, who was present and had opportunity, but made no objection thereto. This case we regard as clearly distinguishable from those cases in which it has been decided that a partial payment, by one joint debtor, will not take the case out of the statute of limitations as against another, who was not present. In the latter case, no assent can be implied; the party not being present, and having no opportunity to signify his dissent. The payment, in the present case, must be considered as having been made with the full assent of the defendant, implied from his presence and silence ; and we regard such a payment as equivalent to a payment by the party attempted to be charged, and as having, as evidence of a new promise, the same legitimate operation. In this case, Ames was merely surety, and paid the money, it is to be presumed, out of his own funds; and the payment “ upon his own account” could be understood in no other sense, than as a payment in discharge 'of his own liability as such surety, which at the same time operated to discharge, to the same extent, the direct liability of the defendant, to the payee of the note.

The defendant’s counsel', in his argument, cited the case of Kelly v. Sanborn, 9 N. H. Rep. 46, in support of his exceptions taken to the charge of the Court to the jury in the Court below. But we think this case entirely distinguishable from that. In that case, the defendant was not present at the time of the payment upon the note, made by the other co-promisor. Upon such payment alone, we have seen that the party could not be charged with a new promise. It is true that the defendant, in that case, afterwards, upon presentment of the note to him, and inquiry made, if the indorsement were correct, answered that it was ; but in the same conversation, being also asked how he expected to get clear of paying the note, he replied that “he supposed there must be a formal demand, made by the holder of the note,” before the suit could be maintained. In that case, the Court, in delivering their judgment, say, that “ The most that can be said is, that there was no formal denial by the defendant of his liability ; but he, at the same time indicated that he supposed there was an obstacle to the maintenance of the suit at that time, at least: taken together, then, there is nothing on which to found an inference of a promise.” The entire correctness of that decision we cannot doubt. It rests upon the general principle, to be found in the cases, that the whole that is said by the party at the time, is to be construed together; and where a distinct, and express acknowledgment of a present and subsisting debt, or a payment in part thereof, is accompanied by any act or declaration, inconsistent with the idea of a willingness to pay the debt, the presumption of a promise to pay, which would otherwise be properly made, would be thereby rebutted. This case, in its facts, stands wide of the ground upon which that case was determined, and is not at all affected by that decision ; at the time of the payment, no acts were done, or language used by the defendant, indicative either of a denial of liability, or of an unwillingness to pay the note in question, although he had ample opportunity to do both, and we see no reason for holding that the payment, thus made, stands upon any other ground than it would, if made by the hand of the defendant himself, or is less indicative of an intention on his part, to pay the note. He was present and knew and understood that tbe payment was made, and impliedly assented to it, and must have been liable to Ames for the sum so paid, as before stated; and- it is difficult to see how tbe delivery of tbe money by tbe defendant himself, could have added any force to tbe transaction, as indicating or tending to show a confession of a subsisting debt, and a liability and willingness to pay tbe same.

Upon tbe whole, we are satisfied that tbe ruling of tbe Court, in this particular, was correct, and that there must be,

Judgment on the verdict.