Huntzinger v. Jones

The opinion of the court was delivered, by Agnew, J. — The question here relates to the competency of [172] the evidence, not its final effect. Primfi facie Jones’s check to the order of Huntzinger & Co. was evidence of the payment of a debt to them. But he could disprove this by showing that it was drawn for a different purpose. How could he begin his proof except by showing how he was induced to draw it, and the purpose for which he delivered it ? The check was obtained from him by Charles Huntzinger, who asked him for it for the use of George W. Huntzinger & Co.; to he returned in a few days. Clearly he had a right to prove this fact to rebut the presumption of his own indebtedness to George W. Huntzinger & Co. And how could he prove this better than by the testimony of an ear and eye witness who heard the request, and saw the check drawn and delivered to a messenger to be carried to Huntzinger & Co. ? The fact that Charles Huntzinger was not the agent of George W. Huntzinger & Co. cannot deprive Jones of this evidence to disprove his own indebtedness on the check. If other proof would show that, though the cheek was drawn and delivered for the purpose thus proved, George W. Huntzinger & Co. were not bound by the representations of Charles Huntzinger, and were entitled to retain the check for the payment of the debt of a third party, this belonged to a subsequent stage of the cause, and was the subject of a prayer for instruction to the jury. But there is np bill of exception to the charge, and all we can do is to decide upon the competency of the evidence when it was offered. It was an important step in the proof, for the plaintiff could only begin by removing the legal presumption that he had given his check in payment of his own debt. If George W. Huntzinger & Co. were entitled under the circumstances to retain the check, they ought to have asked for the proper instruction to the jury, and to have taken an exception if the answer was unfavorable. Judgment affirmed.