Stanton v. Crispell , 16 N.Y. Sup. Ct. 502 ( 1877 )

LeaüNed, P. J.:

Whatever we may think of the result of this action, our right to review is limited. There is no exception to any part of the charge. There was no motion for a nonsuit and no request to direct a verdict for the defendant; the defendant therefore cannot question the rule of damages, and we do not pass on this, nor on the right to recover that amount, if there was a conversion; nor can he raise any question as to the effect of the refusal to deliver notes which had been destroyed. (Salt Springs National Bank v. Wheeler, 48 N. Y., 492.) In like manner he is prevented from urging, as is claimed on his points, that there was no evidence to go to the jury of a wrongful conversion. (Barrett v. Third Avenue R. R. Co., 45 N. Y., 632.)

The only questions which seem to be open to us are, 1st. Whether, assuming the charge of the court to be correct, we can say that the verdict is such that the jury must have been improperly controlled by passion or prejudice. Now, the charge was that, if the notes were voluntarily surrendered by the plaintiff to the defendant, the action could not lie. That, on the contrary, if there was any trick or contrivance by which the notes were got from plaintiff’s possession, without his consent, and were then destroyed, it would be a conversion. No exception was made to this and no request to lay down any other or more definite rule. On looking at the evidence under this charge, and under the implied admission of the defendant that there was a question of fact as to the settlement, I am unable to say that the jury were improperly controlled by passion or prejudice. They saw the parties and heard their respective stories; and they are the tribunal for the decision of facts. 2d. The plaintiff, on his examination, was asked, Did you ever assent to any such settlement as the doctor (defendant) has stated here ? This was objected to by the defendant on the ground that assent is to be judged from what was said or done. The objection was overruled; the evidence admitted, and the defendant excepted. As the defendant’s counsel thus called attention specially to the principle, that the acts and sayings of the parties must prove assent or dissent, it would seem that the testimony which was admitted included the mental intention of the witness. This was not proper. It was for the jury to decide, from what the defendant said and did, whether he assented to the settlement, or, perhaps, in strict accuracy, whether his acts and deeds justified the defendant in believing that the plaintiff did assent to the settlement and did surrender the notes in accordance therewith. As this is an action of tort, it is necessary for a recovery to show a wrongful act of the defendant. That must depend on what he was justified in understanding from the plaintiff’s acts and sayings. These only were competent, and these the plaintiff had already stated.

Tet, such a general answer as was given to this question is one very likely to influence a jury, in such a case as this, and as this answer was improperly admitted the judgment must be reversed and a new trial granted; costs to abide the event.