Bird v. Harville

By the Court. — Jenkins, J., delivering the opinion. 1. We think there was no error in the refusal of the Court below to dismiss the suit by reason of the plaintiff’s failure or refusal to answer the interrogatories twice issued and served upon him. As regards the interrogatories issued with a commission, under the Act of 1853, (the first sued out,) it does not appear upon what ground the Court placed the refusal to dismiss. But it would seem that no motion was made upon that refusal during the plaintiff’s life; but intervening his refusal and death, the defendant resorted to another method of aceom [463] plishing the same object, viz: the process of compelling a discovery at common law under the Act of 1847. This may have been considered a waiver by defendant of his right to demand a dismissal of the action for that cause. The plaintiff’s failure to answer the interrogatories filed under the Act of 1847, under the circumstances, certainly afforded no cause for the harsh penalty of a dismissal. That statute allows the party of whom a discovery is sought sixty days after service of the interrogatories. They were served, in this ease, just sixty days before a term of the Court. The party therefore had the full interval between the service and the first day of the term within which to answer. But he died ten days before the term, having had but fifty days. Under such circumstances, we will not disturb the discretion exercised by the Court below. 2. When the depositions of the witness, Wallace, were offered, the Court admitted his statement that he had received the due-bill of the plaintiff, Sturdevant, to Craft, from the hands of the latter, and the due-bill itself. The additional statement that he had received it as collateral security for a debt of Craft, is simply irrelevant, and that was enough to justify its rejection. 3. The remaining exceptions, viz: to the rejection of the evidence of James B. Lofton and Joel Young, and the evidence in support of the plea of set-off, we will consider together; all depending upon the same rules of law. The evidence of Lofton and Young, consisted of the sayings of Craft (the payee of the note) showing, first, a continuing interest in and ownership of the note, and secondly, the consideration for which it was given. If the declarations of Craft were admissible for any purpose, they^ certainly were so for the purpose thus stated, because by the answer of the defendant, the facts sought to be proven, were pleaded, and constituted his chief defense. The inquiry is, whether a foundation had been laid for the admission of Craft’s declarations. They were objected to because he was no party to the action, and they were not made in the presence of the [464] plaintiff, or under circumstances from which his assent to their verity could be legally implied. The note was upon its face negotiable by delivery, and was therefore, prima fade, the property of any person having the possession of it. Such was the position of Sturdevant, the plaintiff below. He had the possession of the note, and asserted his title to it, in this action. But this was not conclusive upon the defendant. He, by his pleas, assumed the onus of establishing the payee’s continuing interest in, and title to the note, as the foundation of his defense. He offered in evidence, a due-bill of the plaintiff to Craft, the payee of the note in suit, (having first proven that the body of the due-bill, as well as the signature, were in the handwriting of the plaintiff,) as follows: “Atlanta, December 24th, 1854. “ Due W. II. Craft, or bearer, the' sum of nine hundred dollars, to be paid when a note of one thousand dollars on John Bird, of DeKalb county, is collected. “ (Signed) A. J. Sttjkdevant.” The Court very properly admitted this evidence. But why? Certainly not because it precluded the plaintiff’s right to have and maintain his action; nor because it threw any light upon the original transaction between the maker and payee of the note. It could only be admissible in support of so much of the answer as denied plaintiff’s bona fide title to the note referred to in it, and averred Craft’s continuing interest in it. The Court,.doubtless, considered it proper evidence, to aid the jury in determining the issue thus made upon the rightful ownership of the note. In the present state of the pleadings, we are not called upon to decide whether or not, it was sufficient proof to authorize a finding by the jury that the note was the property of the payee, and not of the plaintiff, who had been put forwárd, to preclude a substantial defense, by the maker. The Court below, by admitting the due-bill, conceded its pertinency to the issue, and the legality of the general line of defense, as set forth in the answer. Had [465] either of these been wanting, there would have been error in admitting the'due-bill. We think it was properly admitted, and that it was sufficiently strong, to require of the Court a reference to the jury, upon it, of the fact it was intended to establish. But of what avail would this be to the defendant, unless he were permitted to follow it up with such evidence, as was needed to support other parts of his defense, (that of illegal consideration for instance, or of set-off) such evidence, as would have been indispensable to defeat a recovery by the payee himself? Yet the Court below having admitted this evidence, worthless to the defendant and clearly irrelevant, unless it admitted him to other parts of his defense, immediately closed that door in his face, rejecting all else. Here was evidence, by the plaintiff’s own admission, that in the event of his recovering the note here sued on, he was bound to pay over to Craft, the payee, nine hundred dollars, retaining for himself only one hundred dollars; by no means an extravagant commission for the service of collecting. Without intending to prejudge any question which may arise in the further progress of this case, our opinion is, that the defendant had laid the foundation for the admission of any evidence which would have been admissible, had Craft been the plaintiff instead of Sturdevant. The evidence should have been admitted, except so much of Craft’s statement to Lofton, as referred to a consideration for the note not set out in the answer of defendant; and the jury should have been charged that they must be satisfied by evidence, other than the declarations of Craft, that he, Craft, was the bona fide owner of the note, before considering his declarations ; but if so satisfied, they must give the same effect to Craft’s declarations, and allow the defendant the same defense, as though Craft were the plaintiff in the case, except that they could not find any balance against the plaintiff, by reason of the set-off. For error, therefore, in rejecting Lofton’s evidence, (as above qualified) and in rejecting Young’s evidence, and in rejecting evidence in support of the set-off, we reverse the judgment of the Court. Let the judgment be reversed.