Sanborn v. Sanborn

Blodgett, J.

Sifting the wheat from the chaff, the material inquiry in this case is, whether evidence tending to prove that the purported indorsement of May 20, 1880, was fraudulently made by the plaintiff, could be weighed by the jury in considering the truthfulness of the indorsements purporting to have been made by him April 6, 1882. In other words, the plaintiff having put in evidence part of a paper \ipon which the issue in the case directly turned, was it competent for the defendants to show that another part of the same paper was an utter fabrication ? 'This question sufficiently answers itself in the affirmative; but upon the facts appearing in the case no other answer is possible. The plaintiff’s action upon the note of his deceased father rested upon a new promise; and to establish the promise he relied upon certain indorsements in his own handwriting. The defendants contended that these indorsements were fraudulently made by him for the purpose of renewing the note. Upon this issue the plaintiff introduced the testimony of his brother to the effect that the indorsements were made in the presence and by the direction of the maker of the note. Under these circumstances it was of course competent for the defendants to show that a prior indorsement made by the plaintiff upon the note was a fabrication, not only because it would obviously and properly tend to induce the jury to discredit the testimony of the witness, but because it would also tend to destroy the credit to which the paper would otherwise be entitled, and to impair the credibility of the plaintiff’s entire case. And to this effect, moreover, are Knight v. Heath, 23 N. H. 410-414, and Corser v. Paul, 41 N. H. 29.

In this view of the case it follows that the instruction requested by the plaintiff, limiting the jury in the consideration of his truthfulness to the evidence which he bad given as a witness, was quite too narrow, and therefore was properly refused. If the plaintiff had been a witness merely, the instruction apparently might have been properly given; but being a party also, his truthfulness was not only an element to be considered by the jury in weighing his individual evidence, but it properly extended to the consideration of his entire case. There is no difference of degree, in law or in morals, between the responsibility attaching to him as a witness and as a party. He testified by his acts as -well as by his words; and if by means of either he gave false testimony, he cannot be heard to say that he is not responsible as a party for his falsity as a witness; nor can the law fix any limit to the effect of such falsity upon his case so long as it remains the province of *184 tbe jury to balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved. To have limited the instruction according to the request would have been a usurpation of the prerogative of the jury as well as a misstatement of the law.

The complaint of the instruction as given, made at the argument, need only be adverted to in view of the numerous and uniform decisions in like cases. There certainly was no error in instructing the jury that they were at liberty to consider the plaintiff’s truthfulness; and if he had cause to apprehend that other than legal evidence could be considered by them upon this point, he had the opportunity, and it was his duty as well, to move the court for proper additional instructions. Having failed to do this seasonably, it is now too late for him to remedy his error, and the possible effect of it upon the verdict cannot be considered.

Exception overruled.

Carpenter, J., did not sit: the others concurred.