Holmes v. Roper

¶1(concurring in result.) One of the defenses urged at the trial to the note in suit was that it was without consideration, and merely a gift. The form of the note, it being payable 30 days after death of the maker, and not negotiable or on interest, cast doubt upon the existence of a valuable consideration. A loan is not usually secured or a debt paid in that way. Concededly, the plaintiff, the payee, paid nothing. It was, however, claimed by plaintiff that the note was given in place of a similar one made in 1884, and that in a settlement in 1884 between Job Holmes, the maker, and his brother Rufus, the father of plaintiff, the amount of the note was charged by Job to Rufus; so that in substance Job in this way, with the assent of Rufus, retained in his hands an amount of money belonging to Rufus equal to the *289amount of the note. No reason for a transaction of this kind was shown. The statement of settlement of that year, that was signed by Rufus and put in evidence by the defendants, shows nothing about it. Presumptively, from the manner in which Bufus and Job made their settlements, there was at the same time a statement signed by Job which would be in the possession of Bufus, and which, according to some of the evidence given on the part of plaintiff, would contain the $2,000 item. No such statement was produced by plaintiff, or its absence accounted for. Nor was Bufus sworn as a witness, although he was accessible, and was shown to have been assisting the plaintiff in preparing the case. Bufus was a competent witness for some purposes, at least, and it was known before the trial, as the plaintiff testified, that the question of consideration would have to be met. The referee found that there was a good and valuable consideration. It may be that there was enough evidence to authorize such a conclusion, but the surrounding circumstances, and the character of the note, left it in a good deal of doubt. Having this in view, as it should be, in determining the importance to be given to the newly-discovered evidence, I am inclined to concur in the conclusion of the presiding justice that there should be a new trial.