Wharton v. Thomason

CLOPTON, J. The action is brought by appellee, on a note executed by defendant to Hughes, for part of the purchase-money of a tract of land. The note was left with defendant as collateral security for the payment of two notes, made by Johnson and Mrs. Beard respectively, on each of which Hughes was a surety. The note sued on was not to be paid, until the notes of Johnson and Mrs. Beard were paid. The contention was, whether these notes had been paid. The assignments of error are directed solely to the rulings of the court on the admission and exclusion of evidence. In considering the admissibility of evidence, the inquiry should be directed to its pertinency to the issue, and its tendency to prove any fact material to the case. If it is relevant, and serves to elucidate the issue, it should be admitted, and its sufficiency addressed to the jury. The bill of exceptions does not purport to set forth all the evidence, and all reasonable [47] presumptions will’be made in support of the rulings of, the court. The plaintiff offered in evidence certain items contained in what purported to be an account-current, filed by the defendant as the executor of the estate of William Wharton, in the Probate Court, for a final settlement of the estate in 1878, which account was verified by the defendant. The notes of Johnson and Mrs. Beard were given for personal property of the estate, purchased by them respectively, in November, 1863, and the items offered were the sums of cash collected from them on these notes. These statements were an admission by the defendant, that he had collected those amounts, and tended to show, prima facie¡ the payment of the notes to that extent. While the defendant was entitled to have in evidence every thing in the account, which operated to his benefit, the larger portions of the other items, it must be presumed, referred to matters not relating to the case, and would have been irrelevant, if offered by the plaintiff. Under such circumstances, the plaintiff was not obliged to offer the entire account, but only such parts a's were relevant. If there were any other parts, which the defendant supposed were beneficial to him, he had the right to offer them. The absence of “Exhibit A,” to which reference is made as part of the account, could not have injured the defendant. 'It ■shows that the note of Johnson had been sued on, and the amount scaled. Its tendency is to prove, that the sum admitted to be collected was in payment of the amount due on the note, as judicially ascertained. Besides, the judgment obtained on the note of Johnson was introduced, and is higher evidence of the recovery than “Exhibit A.” It does not appear that a final record of the settlement of the estate and the account-current has been made up; and in such case the original papers .are competent evidence, and a certified transcript is not required. — Buffington v. Cook, 39 Ala. 64. Whether the account-current was or was not the original paper, the signature of the defendant to the affidavit verifying its correctness having been proved, it was competent evidence .against him,'as an admission of the sums paid on the notes. The proceedings and judgments of courts of record are admissible as evidence only between parties and privies, except for the mere purpose of proving the existence or rendition of the judgment. Neither the plaintiff nor Hughes was a party to the final settlement, nor a privy. The proceedings and orders on the final settlement of the defendant, as executor, were as to the plaintiff res inter alios actos, and inadmissible as evidence in favor of the defendant. There is no error in admitting the interviews between plaintiff [48] and defendant in 1870. They tended to show that the defendant admitted his liability, and expressed his readiness to pay the note sued on, when he could procure the papers by which to ascertain the amount due, without interposing any objection that the notes of Johnson and Mrs. Beard had not been paid. Mrs. Beard testified, that she had not paid her note to the defendant, or any part of it, but that she paid it to her surety, Plughes. By the agreement with Hughes, the note sued on was not to be paid until her note was paid. Whether Hughes had accounted for it to the defendant, was a question to be determined by the jury on the whole evidence. Neither the consideration of her note, nor the amount for which she was legally liable, is an issue that can be tried on the pleadings in this case. The issue is, Pías the note been paid, either in full, or by acceptance of a less sum in satisfaction ? for it does not appear that there had been any adjudication of the amount due. On the issue of payment, evidence of the property purchased by her at the sale, and its value, is, prima, facie, irrelevant and inadmissible. No evidence should be admitted, which does not tend, directly or by reasonable inference, to prove or disprove the matter in issue. Reversed and remanded.