Thomas' Admr'x v. Thomas

JUDGE, J. On the trial below, the defendant was introduced as a witness in his own behalf, “only to prove the credits which were endorsed upon the back of the note sued on.” After testifying in relation to these credits, and nothing else, the plaintiff, on cross examination, asked the the defendant, “what was the verbal agreement and understanding between himself and the other heirs, as to the currency in which the notes given at the division, including the one signed by the defendant, were to be paid, when the same became due ?” This question was objected to on the part of the defendant, on' the ground that it called for evidence in relation to a transaction between the witness and plaintiff’s intestate, which it was insisted the witness was incompetent to prove, unless the plaintiff would make the defendant, his, plaintiff’s witness. This the plaintiff declined to do, and the court, in obedience to defendant’s objection, refused to permit the defendant to answer the question, and the plaintiff excepted.' Section 2704 of the Revised Code, provides that in an action like the present, “neither jparty shall be allowed to testify against the other as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party.” The court below seems to have construed the phraseology of the section of the Code above .quoted, to mean, that neither party can, under any circumstances, call upon his adversary to testify as to any transaction with, or statement by, the testator or intestate, unless he makes such adversary his ivitness. We cannot yield our assent to this interpretation. The defendant having been introduced and examined as a witness in his own behalf, it was competent for the plaintiffs to ask the defendant, on cross examination, the question which was propounded to him, and he should [122] have been required to answer it; for'he was then “called” by the opposite party, within the meaning of the statute, to testify as to a transaction with the plaintiff’s intestate. It is not an indispensable pre-requisite to the validity of such a call, that the party making it should make the party called on his witness, when the latter is already on the witness stand, and subject to a cross examination. 2. In actions upon contracts executed with an understanding or agreement that the same should be discharged by a payment in Confederate currency or treasury notes, the measure of the plaintiff’s recovery is the value of such currency or treasury notes, at the time payment is to be made; and if at that time, such treasury notes should be of no value, then nominal damages only can be recovered. See Kirtland v. Moulton, decided at the present term, where this question is fully discussed. It follows that the court erred in the rulings as to the law upon this question. We deem it unnecessary to pass upon the other questions presented by the record, relating, as they do, to the admission or rejection of evidence. From their character, we think it probable they will not again arise in the cause — at least they may not be again presented in the same form. Judgment reversed and cause remanded.