WHITING v. EQUITABLE LIFE ASSUR. SOC., 60 F. 197

LOCKE, District Judge, (after stating the facts.) The first question presenting itself in tins' case is as to allowing the amendment to the bill of exceptions as originally presented, which shows that the receipt in question was, subsequent to its rejection, again presented, admitted by the court, and read to the jury. It appears that the motion to amend the record was made to the presiding judge during the same term at which the trial was had, considered by him, and the order entered allowing the desired amendment.

Unquestionably, it was within the power of the court to so correct any omission, either of the clerk or the party preparing the bill of exceptions, during tiie term. Even subsequent to the adjournment of the term the court could, upon application, correct the record so as to show the truth of what actually occurred, and repair any error or omission of its officers, upon proper application being made. Matheson’s Adm’r v. Grant's Adm’r, 2 How. 263; In re Wight, 134 U. S. 136, 10 Sup. Ct. 487; Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450, The amendment is allowed.

Accepting the bill of exceptions a$ amended, and considering that the receipt was admitted in evidence, was there then a case made by the entire testimony that would justify the jury in returning a verdict for plaintiff? There was no conflict or contradictory testimony, either of statement or circumstance, that needed weighing and deciding. It is true the existence of the receipt was prima facie evidence of payment, but such as was easily explained away.

The fact that a sight draft was so far considered a payment as to justify a receipt, and yet was not a. transfer of value, and, when payment upon it was refused, was found not to be, presents no inconsistency. The testimony introduced by plaintiff, containing as it did the deposition of Bacon and the letter of Murrell, defendant’s general agent, and upon which alone the receipt appears to-have been admitted, so explained the entire transaction that it is very doubtful if a verdict for the plaintiff would have been justified upon his testimony alone.

But when the testimony of Ruse, the only witness personally acquainted with the facts of the payment and giving of the receipt, and the truth of whose testimony is in no way questioned by anything appearing in the record, is accepted, what shadow of right the plaintiff might have appeared to have disappears.

The apparent inconsistency of, the date of the letter of Murrell to Brown, informing him that his application had not been accepted, and no policy would be issued, it being July 8th, the same day upon which the application was suspended at the Hew York office,‘and which has been commented upon at some length by plaintiff’s attorneys, is explained by the last sentence of his letter of the 12th July, wherein he states that he did not deem the case “morally acceptable.” Unquestionably, this conclusion had been reached by the 8th of July, the date of his letter, on account of the nonpayment of the draft.

It is a well-established rule of practice in the United States courts that the court may withdraw a case from the jury, and direct a verdict for the plaintiff or the defendant, where the evidence is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, and the numerous cases therein cited.

In this case it is not considered that the evidence would, in any light it might be'viewed, giving it the weight to which it was entitled as undisputed and uncontradicted, justify a verdict for the plaintiff, and we find.no error in the judge in instructing the jury to find for the defendant. The writ of error is dismissed, and the judgment below affirmed, with costs.