Dean v. Warnock

Mr. Justice Sterrett delivered the opinion of the court After the death of Emezy, one of the three joint obligws, this suit was brought on the bond in the name of Warnock, the obligee, to use, &e., against Dean and Stoughton, the surviving obligors. On the tidal it became necessaiy to explain azi alteration apparent on the face of the bond, and for that purpose Warnock, the legal plaintiff, was called, and, without objection, testified in substance that he received the bond from one of - the obligors, but could not remember which of them, and that it is ■ now iu the same condition as when he received it. After his examination in chief was concluded and lie had answered one or. two questions on cross-examination the defendazzts interposed an objection to his coznpeteney on the ground- that the suit was [568] against them as surviving obligors. The objection was overruled and the cross-examination of the witness continued, but no additional facts were elicited on either side. Assuming, for the present, that the objection to the witness was not too late, was he competent to testify to any transaction between himself and either of the three joint obligors? lie was undoubtedly competent to testify as to what occurred between himself and either of the survivors, but not as to any transaction between himself and the deceased obligor. The fact sought to be proved by him was that the bond, in its present condition, was delivered to him by one of the three, and he so testified, but could not remember which of them delivered it. Eor aught he knew he may have received it from the deceased obligor; and, if so, the survivors would be deprived of the benefit of his testimony, and the plaintiff would therefore occupy a vantage ground, gained by the death of the other joint obligor. It would be otherwise if he had testified that one or the other of the survivors had delivered the bond,.for then they would be in a position to deny the fact, if it was untrue. The letter as well as the spirit of the Act of 1S69 and its supplements is opposed to opening a door to one party that has been closed by death against the other: Hanna v. Wray, 27 P. F. Smith 27. In furtherance of the principle of equality recognized in that case, the Act of May 25th 1878, provides, that in all civil proceedings, by or against surviving partners, no interest or policy of law shall exclude any party to the record from testifying to matters having occurred between the surviving partners and the adverse party on the record. In Ash v. Guie, 1 Out. 493, this statute is said to be remedial and intended to enable parties who stand on an equality, to testify, though a party in interest be dead. “Its spirit embraces the survivor of two or more who jointly contracted. If two persons jointly execute a note and one dies, in an action between the holder and the survivor this statute should apply as if the makers had been partners : otherwise the mischief is only partially remedied. Those jointly concerned in a transaction are partners in the popular sense of the word, and considering the obvious intendment of the statute it should apply in the ease of a surviving partner in the popular as well as the technical sense.” In addition to this, the rights and obligations of a deceased obligor, in a certain sense devolve on the survivors. It is their duty to guard the interests of his estate as well as their.personal interests. If they are compelled to discharge the joint obligation, they have a light to claim contribution from his estate; and the extent of such contribution is not always measured by the number of joint obligors. If one or more of them prove to be insolvent the contribntive share of the others will be cor [569] respondingly increased. It does not follow, therefore, in this' case, that by reason of having paid one-third of the bond the personal representatives of the deceased obligor are exempt from further liability. It follows from what has been said, that while the obligee was a competent witness as to any transaction between himself and either of the surviving obligors, he was incompetent to prove any transaction he may have had with the deceased obligor in relation to the bond. But the objection to his competency came too late. lie was permitted to testify fully in chief to the facts which he was called to prove. It was not until he was partially cross-examined, that any objection was raised. The defendants must have known in the outset the ground of objection which they interposed after they heard what the witness had to say. They cannot thus be permitted to take the chance of obtaining testimony favorable to themselves, and then, upon discovering that it is against them, ask to have it excluded. The testimony in itself was both competent and relevant. If there was a valid objection to the competency of the witness by whom it was delivered, it should have been interposed at ’the proper time. Not having been done then,'it should be considered as having been waived. There was other testimony tending to show that the bond was not altered after it was executed and delivered to the obligee. In view of the evidence as to the execution of the instrument and explanatory of the alleged alteration, the court was clearly right in admitting the bond and submitting the case to the jury as was done. The indorsement on the bond, “Pay to A. Patchen,” over the signature of the obligee, presented no obstacle to the plaintiff’s recovery. The instrument is not negotiable, and there is not a particle of evidence that it was ever assigned and delivered to Patchen or that he ever had any interest in it. The suit was properly brought in the name of the obligee. The assignments of error are not sustained. Judgment affirmed.