Davidson v. Rothschild's Administrator

PECK, C. J. — We think the court correctly sustained the objections to the several questions propounded to the defendant by his own counsel, because they related to transactions with the plaintiff’s intestate, S. Rothschild, deceased. The first question required the witness to state whether or not any papers passed between him and said deceased at the time the note sued on was given. This clearly referred to a transaction with the deceased, and was properly excluded under section 2704 of the Revised Code. The other questions asked and objected to were of like character; and, for the same reason, there was no error in refusing to permit them to be answered. 2. There was no revisable error in the action of the court requiring the defendant to proceed on the trial of the cause, after the same had been commenced, because, as alleged, the plaintiff did not produce all the books, &c., under the notice to him for that purpose. This was a matter resting in the discretion of the court, and it is not revisable in this court. [109] 3. The defence of -the Statute of Frauds does not seem to be presented in this case. The note imports a consideration, and it was not necessary, in declaring on it, to state any consideration, nor to prove any on the trial, in the first instance. When a promissory note is given by an executor, administrator, or guardian, it is primd facie evidence of assets, because assets are presumed to be the consideration upon which such a promise is founded. Between the original parties, it is primd facie evidence only; and the defendant may show that, in fact, there were no assets, and thus defeat a recovery for want of a sufficient consideration. Edwards on Bills & Notes, p. 78. On proof by the defendant that the note was given for the debts of the ward, and also that there were no • assets of the ward’s estate to pay it (the plaintiff being the administrator of the payee), no recovery could be had, on the ground of the want of consideration, but not because the note was void by the Statute of Frauds. Where the contract or agreement imports a consideration, none need be expressed on the face of the paper. 2 Wms. Executors (Amer. ed. with notes), p. 1818; Edwards on Bills & Notes, supra. The charge given by the court on this point was free from error. On the facts therein stated, the note was an original, and not a collateral undertaking, and imposed a personal liability on the defendant; and the Statute of Frauds had no application to the case. The two charges asked by the plaintiff, and given by the court, are also free from error. As stated above, the note imported a consideration ; and the burden was on the defendant to show a want, or failure, of consideration. If the defendant had proved that the note was given for the debts of the ward, created before his appointment as guardian, and also that there were no assets of the ward’s estate to pay it, then he would have shown that the note was without consideration, and that no recovery could be had upon it. Edwards on Bills, supra. For the reasons above stated, the first charge asked by the defendant was properly refused. We think, also, the second charge asked by him was correctly refused. The filing of the note in the office of the probate judge, as a claim against the ward’s estate after his death, was no defence to this action. The two last charges asked by the defendant were also properly refused. The mere settlement of the claims, for which the note was given, without more — without showing payment — was no defence. To say that the claims were settled, was not equivalent to saying that they were paid. But there was error in the ruling of the court to which the first' exception was taken by the defendant; to wit, the refusal to permit him to prove by the original complaint that the note [110] was given for the debts of his ward. It is a general rule, that what is admitted in the pleadings need not be proved. If the defendant had been permitted to prove the admission contained in the original complaint, it' cannot be known but he would have gone further, and proved that there were no assets of the ward’s estate to pay the debt; and if this had been done, there could have been no recovery on the note ; for if there were no assets to pay it, it would have been without consideration, and void for that reason. Although the plaintiff had the leave of the court to amend his complaint by striking this admission out of it, this did not destroy the legal effect of the admission; and I can see no reason why it might not be proved by the introduction of the original complaint, or, if it had in fact been stricken out, then it might be proved by the copy served on the defendant, with the summons, when the action was commenced. For this error the judgment must be reversed, and the cause remanded for another trial, at the costs of the appellee.