Weston v. Hight

[284] The opinion of the Court was drawn up by Emery J. This case is now before us on exceptions. On the former hearing, the original note was lost, and the indorsement was proved by parol. The note, it seems, has since been found. We considered the transaction as not a case of donatio causa mortis, and granted a new trial for the purpose of doing complete justice to the parties, under the apprehension that there might have been such a release of the right and interest which Weston and his wife had in Highfs, the intestate’s estate, by way of advancement, as might constitute a good consideration for the indorsement of the note to hold the administrator responsible. We did so, that the real truth might be made manifest.- We think, on the facts now before us, on the exceptions, that George B. Weston was rightfully admitted to testify as to the contents of the paper, which he and his wife signed and delivered to the deceased, as due notice was given the defendant to produce it. How far the services of Mrs. Weston, she having lived with her father till she was 23 years old, went towards the estimation of the valuable consideration, which the indorsement mentions as received, we cannot undertake to say. But we are satisfied that the relinquishment signed by Cyrus Weston and his wife to the estate, together with all the papers taken together, shew an advancement; and that amounts to a good consideration for the indorsement. It was so intended and so accepted. ■ The requested instruction was rightly declined upon the evidence. There is more difficulty as to the rejection of Gould as a witness. He is the maker of the note, and at first blush would seem to have only a balanced interest. Generally to disqualify a witness, he must have some certain benefit or advantage depending on the event of the suit, or the verdict to be rendered must be available by him, either as a defence to some action, which may be brought against him, or in support of some claim to be made by him, or must be such as can be given against him in some action. In the case 16 Mass. R. 118, Fox v. Whitney, a joint maker of a promissory note who signed as surety, merely, was held a competent witness for the other joint maker, in an action against him by the payee, for being a surety, he cannot be compelled to con [285] tribute, if the plaintiff should recover; and the verdict could not be used in evidence in an action against him. In Hartford Bank v. Barry, 17 Mass. R. 94, which was an action by an indorsee against an indorser, the defence was, that the indorsement was for the accommodation of the maker, and that he subsequently procured the note to be discounted by the plaintiff at a greater than legal rate of interest. The maker was offered by the defendant to prove the usury. He was rejected, on the ground that the note was for all substantial purposes made at the time it was discounted and put into circulation, and therefore the usury was not a fact subsequent to the execution of the note. So an agent, who signed as such for the promissor, was excluded in a suit by indorsee against promissors. Packard v. Richardson, 17 Mass. R. 122. In Warren v. Merry, 3 Mass. R. 27, in an action by the indorsee against the indorser of a promissory note, the defendant offered the maker as a witness to prove that before the note became due, he paid to the plaintiff fifty dollars on account tlierof, and gave him a new note for the balance which was received in full satisfaction; and the defendant having released the witness from all demands on account of the note, it was held that he was competent. No release appears to have been given to Mr. Gould. If the plaintiff prevails, and Gould have paid any thing toward the bond, and the defendant and other heirs should conclude not to convey to Gould, we do not perceive but what he may lose what he has paid. And if the defendant should insist on Gould’s paying first the costs, as in equity he might, we believe that Gould’s interest is not equally balanced. For this action might be defeated by bis testimony, and after the verdict, the note would be capable of being transferred by this plaintiff, to charge Gould. A prior holder may take it and then sue, or the indorsee may surrender it to Gould. So that not merely on account of his being the maker, but as having a bond for the conveyance of the estate, for the payment of which, the note was given, will he be in a better condition if he can show it was paid, than if it were not paid. And therefore he was rightly rejected Exceptions overruled.