Graham v. Howell

McCay, Judge. 1. There was no error in the exclusion of Graham as a witness. The exception in the Act of 1866 is not that the other party, in the' case of the death of one of the parties, shall not testify as to what occurred between the deceased and him, but he shall not “ testify in his own favor.” This excludes- him as a witness. Had the question turned on the inquiry of the value of the consideration under the scaling ordinance, the exception might not apply. But, it is a mere excuse to say the complainant was hurt by his exclusion on this point. That was proven by the tables, and proven largely in his favor, as the tables give the specie value. If this were the only error, we should let the verdict stand ; for even if he were admissible to show the value of the consideration (and it was in this case for that purpose, only, that he was not excluded under the Act of 1866) his exclusion would not have effected the finding. The tables show a lower value than he could show. 2. But we think it was error for the Court to charge, as he did, on the law of accord and satisfaction. There was nothing in the evidence of the clerk to show any such accord and satisfaction. There was no evidence of any agreement. What was the character of the papers, or the amount of money left with the witness, does not appear. Whether there was a statement of accounts, even, does not appear; much less, is there any evidence of there being a proposition to the plaintiff to take a certain sum and the receipt of that sum. The evidence of the witness, in its strongest light, is only that deceased left some money and papers with him, and that he transmitted them to complainants. To infer that this was an agreement and a settlement of accounts, is wholly gratuitous, and the charge of the Court, assuming, as it did, that there was some evidence to justify it, was an injury to the complainants. As there was error in this, it is not a sufficient support for the verdict to say that tire evidence justifies it. That may be, and if there was no error in the Court we would not 207 interfere. But how can we say that the jury may not have found on the evidence of the clerk, under the charge ? The rule is that if there be error in the charge, and the evidence does not require — demand—the verdict, a new trial will be granted. Judgment reversed.