McCarthy v. Scanlon

Opinion by Mr. Justice Mitchell, This case was very loosely tried by both sides, the witnesses apparently being allowed to tell whatever they thought bore on the dispute without reference to its relevancy or their own legal competency. Although therefore the check and judgment notes, exhibits B, C and D, had no apparent connection with the note in suit, yet the assignments of error to their admission cannot be sustained because the plaintiff had been allowed to testify all about them and had been cross-examined on them without regard to their relevancy or to the fact that Scanlon by whom they were given was dead. Though their admission was. not strictly regular, yet the objection came so late that we would not reverse for that cause. But there was substantial error in permitting the jury to find a verdict on a ground of which there was no sufficient evidence. The defendant’s counsel offered to prove that the note in suit was given without consideration, and “ to protect Scanlon (the maker) from any creditors he might have, especially from a judgment he expected to be obtained against him by one RyanN But this part of the offer, whatever might have been the éffect of such evidence on the defendant’s case, was excluded, and [270] the testimony confined to the question of consideration. The defendant in testifying did give a conversation in which she alleged that the plaintiff had said that there “was nothing in it (the note), it was simply given for the protection of- Martin and his children in this case of Ryan’s.” This however was not her own testimony to the fact, but to an admission of plaintiff against his present claim, and at the most does not show that Ryan had anything more than a claim. There is no evidence in the case what the nature of his claim was, or that he was, or ever became a creditor, and there is not a suggestion that there was any other creditor that Scanlon was seeking to hinder or delay. It was clearly apparent that the transactions between the parties were not the ordinary dealings of borrower and lender, and it is equally manifest that the witnesses on neither side were telling the entire truth. The jury seem to have been convinced that there was no consideration for the note, and therefore decided against the plaintiff on his claim. In the absence however of any explanation why the note was given at all when no money passed, they found an easy solution in the suggestion that it was to defraud Scanlon’s creditors. Perhaps they were right in fact, but we cannot say so, or permit them to say so without evidence. It would be at best only a good guess. The result is that plaintiff has a judgment on a ground that he expressly repudiated, and in the face of an explicit finding by the jury against Ms claim, wMle the defendant has a judgment against her notwithstanding a finding of the main fact of the defense in her favor. It was error to permit the jury to find that the note was given to defraud creditors in the absence of evidence that there were any creditors to defraud, and to enter judgment on such finding. Judgment reversed and venire de novo awarded.