True v. Sanborn & a., 27 N.H. 383

Woods, J. The plaintiff in this case proposed to show that the defendants, on a certain occasion several years prior to the time of the sale of the beef which was the subject of this suit, sold the meat of a swine slaughtered in a manner and under circumstances which rendered it unwholesome and unfit for use. That fact was offered to be proved as having a legal tendency to show that the cow was improperly slaughtered, and the beef was unwholesome and unfit for use. The fact of the sale of the beef was not in question.

The quality of the beef at the time of the sale, was the only matter in controversy between the parties. The evidence being offered, objected to, and ruled out by the court, for the purpose of the decision of the question before us, the fact is to be regarded as if proved.

If the fact offered to be proved, were in fact proved, would it have a legal tendency to prove the fact in issue between these parties; would the fact, if admitted or proved, that the defendant, several years prior to the sale of the beef, sold pork that was unwholesome and unfit for use, have a legitimate tendency to show that the beef sold in the present case was also unwholesome and unfit for use ? That is precisely the question arising upon the exception taken to the ruling of the court.

The plaintiff claims that the jury should have been allowed to make the presumption of fact of the unwholesomeness of the beef, from the fact that the pork sold proved to be in an unwholesome condition. If the presumption could properly be made, it must be upon the ground, that it is found among those natural presumptions which “ depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience.” 3 Stark. Ev. (3d Am. Ed.) 1244.

Presumptions of fact “ are in truth but mere arguments, and are to be judged by the common and received tests of the truth of propositions and the validity of arguments.” 1 Greenl. Ev. 49, § 44. The principles thus stated in the books are to govern, the court in the determination of the question before us. Is there seen to be such an intimate connexion between the fact proved in this case, and the fact claimed to be inferred from it, as to lead naturally to the conclusion of its existence? Is the one fact to be inferred from the other, as a matter of fair argument and reasoning ?

Is the inference so far natural and legitimate, and according to the experience of mankind, as to lead to the inference of its clear probability ? But we think it unnecessary to pursue these inquiries farther. It would be the height of absurdity to hold, that the sale of an

article at a certain period, which proved to be bad, of which the seller might have had no knowledge whatever, would form a proper and legal ground of inference, that another and different

article of property, sold several years afterwards by the same person to a different purchaser, was of a bad quality also. In such a case, there would manifestly be wanting that connexion shown by experience between cause and effect which lies at the foundation of the presumption to be made. We are, on the whole, clearly of the opinion that there is no foundation for the exception taken to the ruling of the court, that the evidence offered and rejected had no legal bearing upon the question in issue, and that there must be, Judgment on the verdict.