Patterson v. Bank of Lenox

Hill, C. J. (After stating the foregoing facts.) 1. The learned judge of the trial court rejected the evidence of the defendant Mrs. Patterson as set out in the first special assignment of error in her motion for a new trial, on the ground that she was not a competent witness to testify in support of the allegation Of her plea that she was surety on the note sued upon;that the principal maker of the notes, Mrs. Elliott, whose administrator was one of the defendants, was dead, and that as the testimony of Mrs. Patterson was in her own favor, against the decedent, as to a transaction which the witness had had with the decedent, she was not a competent witness, under the evidence act of 1889 (Civil Code of 1895, § 5269). The above-cited act provides, in substance, in so far as it is relevant to the question under consideration, that where “any suit is instituted or defended by . '. the personal representative of a deceased person, the opposite party shall not be permitted to testify in his own favor . . as to transactions or communications with said . . deceased person.” Civil Code of 1895, § 5269, par 1. And the further provision is made in that act that “where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any reáson be incompetent.” Civil Code of 1895, § 5269, par. 4. This ruling was correct, under the act of 1897 (Acts 1897, p. 53). 2. The rejected testimony of E. C. Patterson set out in the second special ground of the motion for a new trial was unquestionably admissible in behalf of Mrs. Patterson. His testimonjq from a legal standpoint, instead of being in his favor, was really against his interest; for if his .testimony was believed by the jury, Mrs. Patterson would have been relieved from liability on the notes, and his liability thereon would have been increased. If, therefore, he was solvent, his proposed testimony was clearly against his interest, and not in his favor. If he was insolvent (and the record shows that the plaintiff declined to take-a judgment against him because of the fact that he had been adjudged a bankrupt), he had no interest whatever in the result of the pending suit; and for this reason his testimony was competent. The ruling here made is fully [495] •within the principle announced by the Supreme Court in Reed v. Baldwin, 102 Ga. 80 (29 S. E. 140). The headnote of that ease is as follows: “Where the executors of the deceased payee of a promissory note bring a suit thereon against a husband and wife who signed it as joint makers, and the wife files a plea that the debt was her husband’s and that she is not bound therefor, the husband is a competent witness, under the evidence act (Civil Code, § 5269), in support of the plea of the wife. The testimony thus offered is not evidence in favor of the party testifying.” We conclude, therefore, that E. C. Patterson was a competent witness to testify to the facts set out in Mrs. Patterson’s plea, and that the court erred in excluding his testimony. 3. We also think that the court erred in not allowing the entries from the “bills receivable register” of the bank to be introduced in evidence. The fact that the bank, as payee of the notes, regarded the defendant Mrs. Elliott as the principal maker and the other defendants as sureties was an admission made against its interest, and tended to establish the contention of Mrs. Patterson that she was surety on the notes for Mrs. Elliott, which fact the bank knew when it .took the notes and made the loan to Mrs. Elliott. Jones v. Hough, 98 Ga. 492 (26 S. E. 566). We can not say what effect the rejected evidence would have had in establishing Mrs. Patterson’s defense, but we are clear that she was entitled to have liad it submitted. Besides, there is some evidence in the record that tended to prove her defense, and the court erred in directing a verdict for the plaintiff. Judgment reversed.