By the Court,
It is not only the right, but the duty, of the court, to direct the verdict which the jury shall give, when the evidence in the case is so preponderating in favor of one of the parties as that if a verdict should be found one way, the court would set it aside as against evidence. This is perhaps as precise as the rule can be laid down; and it is not difficult of application. The converse of the rule—to wit, that when the evidence is not so preponderating in favor of one of the parties as that the court would set aside a verdict found against the evidence, the case must go to the jury—is as well settled as the other.
The only question which I propose to examine, in this case, is whether the court was justified, under the foregoing rules, in directing a verdict.
The prominent facts on which the plaintiffs relied for a recovery were, that a misunderstanding had arisen between the parties, as to the meaning of the clause of the contract of the 28th of July, 1856, in which it was provided that the said defendant should receive $15,000 from the first sales of the right to use the two American patents mentioned and described in gaid contract. This sum, when received, was to be in full payment for one half of
On the part of the defense, the defendant himself was called, and testified to sending Bullard to Utica, the receipt of the money'and notes, and the assignment of the patent. It further appeared that in "November, 1856, and after the misunderstanding above mentioned arose, Gilbert, one of the plaintiffs, was at the defendant’s house, •and made the proposition to the defendant, subject to the approval of Fish and Ballou, to give the defendant $7500 in cash and notes on time, to be in full of his interest in the European patents. This proposition was not assented to by Fish and Ballou, and early in December Bullard went to Utica, as above stated. On his return he brought a-letter from Fish, Gilbert and Ballou, addressed to the defendant, in which he was informed that as soon as he executed such assignments as were satisfactory to Bullard, he might sign the drafts foi’ the $1000 to be paid in cash, "and they would honor them. The defendant says that
On the 28th of January, 1858, $900 was paid by the plaintiffs on their notes to the defendant; on the 9th of August, 1858, $100; on the 16th of December, 1858, $131.70. The notes were given in exact conformity to the proposition of Gilbert. On the 25th of July, 1859, the defendant, in his letter of that date, to Fish, complains of the delay of the plaintiffs in making payments on the notes then due, and desires to know whether they would let him have part, or the whole amount then due him, or give new notes on short time. In the reply of Fish to the letter, under date of July 28, 1859, after apologizing for not having written before, by reason of the delay of Hamilton in not returning from Europe, says: “From some expressions in your letter, I infer your views of our relations and responsibilities differ somewhat from my own; but I will not discuss that now, as I hope, on the return of Hamilton, we can meet and dispose of the matter referred to,” &c. This seems to have been-the first intimation the defendant had that there was any misunderstanding as to the paper, and this suggestion is put forth in a way to prevent, rather than to invite, inquiry. In letters from the plaintiffs to the defendant, of the dates of March 9, 1859, April 15 and 26, September 18,1859, and August 6, 1858, the plaintiffs, replying to calls on them for money, by the defendant, beg for time on account of want of means in their own affairs, and the small receipts from sales of the rights under the patents. The defendant had personal interviews with one or more of the plaintiffs at the time one or two of the payments were made, and no intimation was given that the notes were deemed or considered a loan.
. Without alluding to any other of the numerous facts
I am unable to conceive how the lenders of notes to another, for that other’s accommodation, should, on demand by him holding the notes, pay from time to time considerable sums of money on them and yet insist that the fact of payment was not any evidence to show that the notes were held by the holder as his property, and not by way of loan.
There is one Other question upon which it is perhaps proper the court should express an opinion, and that is, whether .the defendant may prove what authority he gave to Bullard, when he came to Utica as his agent, and obtained the notes.
Such evidence was offered on the trial, and rejected; and from the nature of the case it will arise on the next trial of this action, and it may prevent delay and expense if we now dispose of that question.
This action is to recover the money paid to the defendant on the three drafts for" the $1000, and the money paid on the notes. The drafts and notes are evidence that the money .was due to, and not from, the defendant. The plaintiffs, to recover, must establish the fact of the loan ; and that loan being negotiated, if at all, through an agent, it must appear that the agent had authority to act for, and
Allan, Morgan, Mullin and Bacon, Justices.]
If it is sought to.bind the principal by reason of his having ratified the acts of the agent, it wras essential, to give effect to the ratification, that it was done with full knowledge of all the facts. Ho such thing was proved. On the contrary, the principal was left to believe that the notes were delivered as 'payment for his half of the European patents, and not by way of loan. I am therefore of the opinion that, on this ground, a new trial should be ordered. But I prefer to put the reversal of the judgment on the other ground, as that is the important point in the case, and the one on which it must finally be decided. .
Alien and Bacon, JJ., concurred.
Morgan, J., gave no opinion.
Judgment reversed.