As the charge of the court is not given, except detached portions thereof, we must conclude that the questions of fact were submitted to the jury under proper instructions as to the law, (otherwise than as excepted to.) No questions remain for our determination except these exceptions to the admission of evidence, and three additional ones to the charge of the court. *Page 491
In reference to the exceptions to evidence, they were founded on objections made to testimony of the declarations of Higgins, and of his acts in nearly contemporaneous purchases of goods from others beside the plaintiff, tending to show fraud. As Higgins appears to have been a party to the suit, so far as we can judge from the case, at the time of the commencement of the action and of the trial, though his name has got out of it in some way now, it is difficult to see why his own declarations were not admissible testimony against himself and therefore admissible in the cause. The only one which can be claimed to have borne directly against the defendant was that made to the witness Johnson, who was asked to state what Higgins said to him in regard to the sale of the horses to Hodges. I incline to think sufficient evidence of a fraudulent combination between the defendants had been given to justify the admission of this evidence as against Hodges on that ground; but whether so or not, the answer of the witness was not responsive to the question, and should have been objected to and moved to be stricken out on that ground, which was not done. The answer was, "Higgins said that Hodges was one of the damnedest little rascals he ever saw." Now although this was not one of the most desirable certificates to the integrity of the defendant, yet as it stated no fact in support of this opinion — and was moreover the opinion of a party whose own honesty was impugned — we can scarcely suppose that it tended materially to prejudice the defendant, or entitled the party to a new trial on that ground.
The other objections to the testimony are to evidence of acts or alleged acts of fraudulent purchase by Higgins of other persons, nearly contemporaneous with that from the plaintiff, and these are held to be admissible for the purpose of showing a fraudulent intent in this particular instance.
The exceptions to the charge are three in number: 1st. To that portion of the charge which instructed the jury that the retention of the notes by Higgins till their maturity, presentation *Page 492 for payment, protest and notice of dishonor, was not of itself sufficient evidence of an affirmance of the sale by the plaintiff, but that he was still at liberty to disaffirm the sale and bring this action. This was the view of the judge on the question of fact, and if the defendant was dissatisfied with it I think he should have asked the submission of the question of fact to the jury. The only question of law arising on this part of the charge, upon a fair construction of it, was, I think, that the retaining of the notes so long and taking proceedings to protest them was not, necessarily, an affirmance of the contract of sale, which it plainly was not. If the soundness of the charge depended upon the question whether the judge was correct in his conclusion of fact, I should be disposed to sustain it upon the ground that at the time these acts were done the conduct of Higgins, although suspicious, was still not conclusively fraudulent, and that it was prudent to await this development of events before the plaintiff took ulterior proceedings to disaffirm the sale. Further, Higgins had absconded and it was impossible at that time to make surrender of this paper, there being no one to surrender it to. I do not think a new trial should be granted on this ground.
The other exceptions are nearly similar in effect, and may be disposed of upon similar considerations. The judge charged that it was not necessary that the plaintiff should have surrendered the notes to be canceled in order to maintain the action. As Higgins was absent and there was nobody to receive the surrender, and as the courts have frequently held that they may even be surrendered on the trial, when a reasonable excuse is given for not making an earlier surrender, the judge appears to have charged correctly enough in this particular. A contrary charge would have been fatal to the plaintiff, and would have left nothing for the jury to pass upon.
Again, the judge charged the jury (and this is the subject of the remaining exception) that the possession of the notes *Page 493 on the trial by the plaintiff was not sufficient evidence of an affirmance of the sale of the horses, or inconsistent with his right to recover in this action. This question has been considered in disposing of the two previous exceptions. It would have been better perhaps if the judge had stated, as was his apparent meaning, that the possession of the notes was notconclusive evidence of an affirmance of the sale of the horses, or necessarily inconsistent with his right to maintain this action. This was the principle of law involved, and so far the judge was right. If there be any thing else in the exception I think it was matter of fact, as to which the defendant did not ask to go to the jury and therefore is remediless. The judgment should be affirmed.
INGRAHAM and MULLIN, JJ. voted for a reversal. DAVIES, J. took no part in the decision. All the other judges being for affirmance,
Judgment affirmed. *Page 494