Howerton v. . Lattimer

Rodman, J. 1. The first exception is, for the admission of the testimony of the defendant, as to his transactions with Thomas Howerton, a deceased agent of the plaintiff The words of the proviso, in sec. 343, of O. C. P. do not cover such a case. That says that no party shall be examined as to any transaction between him and a person deceased, “ as a witness against a party then prosecuting, or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person. The plaintiff is not prosecuting this action in any of those characters. It may seem that the plaintiff, under the circumstances, comes within the mischief intended to be remedied. Whether that be so or not, we would not be justified in extending the scope of the act, to include the case of a principal of a deceased agent, upon any conjecture, that the Legislature would have included such a case if it had occurred to them. But at all events, the evidence of the transaction became competent, when it appeared that it had been communicated to the plaintiff and that he assented to it. 2. The plaintiff requested the Judge to instruct the jury “ that after the account sued upon had been contracted, if Thomas Howerton exceeded his authority in agreeing to *374 credit defendant with his own account, no promise thereafter made by plaintiff, express or implied, is binding, as the same was without consideration.” This is so obscure that his Honor might well decline to give it as an instruction on that ground alone. We think there was evidence of a consideration for the promises of plaintiff. 3. The plaintiff also requested the Judge to instruct the jury, that the defendant must support his defence by a preponderance of testimony. His Honor told the jury, that, they must judge of the weight of the evidence, and that if they believed, the testimony of the defendant they should find for him. We think this was proper. 4. In the course of the trial, plaintiff offered in evidence “ certain affidavits, made by one Whitted, who had been examined as a witness for defendant, who had been sent by defendant to obtain a continuance of this cause, which affidavits it was alleged were contradictory in some particulars.” These affidavits were made at the previous term, to procure a continuance, for the reason of the sickness and absence of defendant, and stated generally what the affiant expected that defendant would prove on his examination as a witness. Whitted was the agent of the defendant for certain purposes, but it does not appear that he was so for the purpose of swearing to the particulars of his defence. 3. Green. Ev. 235; note. We think the affidavits were properly excluded. Per Curiam. Judgment affirmed.