The argument, as is generally the case when such a transcript as the one in this case comes before us, has been largely made up of controversies as to what the evidence establishes, which was proper for the consideration of the jury but is out of place in a court of errors.
It will not be profitable or necessary to notice all the alleged errors in this decision. Those alone which are decisive of the case will be considered. The remainder may be treated as not well taken or not presented by the record.
One of the errors assigned and insisted on grows out of the conflict in the testimony between the plaintiff and the two defendants, all of whom were sworn as to two papers, which the defendants aver were signed by them and delivered to the plaintiff at the time the escrow was signed, one of which limited the time within which the plaintiff could pay the money and take up the deed to the 1st of December, and the other agreed to give him $2500 out of the $40,000 so paid. No such papers were produced, and on this point the testimony is conflicting. The plaintiff denies the receipt of any such papers, and both the defendants swear positively to their delivery to plaintiff.
On this subject the court charged the jury 'that it is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed.'
We are of opinion that the charge was a sound exposition of a recognized rule of evidence of frequent application, and that the reason of the rule, as stated in the charge, dispenses with the need of further comment on it here.
Leaving to the jury the question of the existence of this limitation of the contract, the court charged in various shapes that, if there was such a limitation, after its expiration, or, if there was none, then, at any time before the payment of the money, the defendants had a right to withdraw the escrow and terminate the plaintiff's agency without accountability to him.
And this view put forth by the court, which was the turning-point in the case, is the error much insisted on here, and assigned in various forms.
The proposition may be looked upon in two aspects: 1. As regards a sale to plaintiff himself, on his payment of the $40,000. 2. As a contrivance to facilitate his sale of the lands as agent of defendants. In reference to the first, we are of opinion that as no pretence is set up of any payment or offer to pay until some time in January, 1865, long after the time limited, if there was a limitation, the utmost that can be justly claimed against defendants is, that it was an open offer of sale at a given price, which bound them only on its acceptance and compliance with its terms; and that until that was done the offer was within their control, and it was entirely within their power to withdraw it. It would seem useless to argue such a proposition. But we will mention two considerations which are conclusive:
1. On any other hypothesis, there is a want of consideration in the contract, the defendants being bound for an indefinite period of time to accept the money whenever it might suit the plaintiff to pay it, while he was not bound to pay or abandon the right to pay at any period within any fixed time. 2. That unless the party making such offer could withdraw or terminate it at his pleasure, there would be no means of relieving him from the danger of its acceptance at any length of time after it was made, and under any changes of circumstances which accompanied his offer. And so are the authorities.
If we examine the proposition as one of agency, it is still clearer that unless there was a contract binding the defendants to accept and ratify a sale by the plaintiff for the sum of $40,000 or more, made at any time, they could, before such sale was completed, withdraw and revoke the plaintiff's agency without liability to him on account of the special offer set up by him.
The charges of the court as to the law of this branch of the case, were, therefore, correct.
It is, however, strenuously contended by counsel for the plaintiff, that before the defendants revoked the agent's authority, by ordering Drake Brothers not to deliver the escrow to him, he had made a valid sale within the terms of the offer, which was an acceptance of that offer, and binding on the defendants.