Johnson v. Ballew

By Mr. Chief-Justice Saffold : Colley, in his life time, instituted an action of as-sumpsit against Johnson, as surviving partner of Moseley, and said Johnson, to recover an account against them for more than nine hundred dollars, for work and labor done and performed. Colley having died pending the suit, it was further prosecuted by Ballew, as his administrator, and being tried in the Circuit Court, on the general issue, a recovery was had against the surviving partner, from which he prosecutes this writ of error. The questions for consideration, arise on a bill of exceptions. The first of which, according to the assignments of error, is— Was the account and acknowledgment, signed by Johnson, admissible as evidence? The account in question appears to have been regularly stated, charging William Moseley and Harmon A. Johnson as debtors to Gabriel Colley. The account contains the various items, with the price of each, amounting to nine hundred and ninety one dollars and twenty cents; to which is subjoined the following : “ I acknowledge that the above items of work were done by Mr. Gabriel Colley; and further, believe that the price annexed to each item, is correct, as to myself individually.” — Signed H. A. Johnson — dated and attested. To the introduction of this evidence, the defendant objected; but the Court admitted it. The main objection now urged against it, is, that it was admitted without proof of the hand-writing of the defendant. It is found true, as contended in argument, that this -fact does not appear, nor is it to be presumed. The bill of exceptions does not purport to contain all the evidence, and this exception is not [32] shown to have been taken below. The party excepting, is required to show affirmatively the existence of the error, of which he complains. The objection relied upon below, may have been entirely different; and something in which the plaintiff in error now has not -sufficient confidence to bring it to the notice of the Court. No other available objection is apparent to the Court. The fact, that the acknowledgment was made by the surviving partner, or one jDartner alone, could not legally exclude it. The evidence was at least relevant., as conducing to prove the issue, whether the acknowledgment was absolute, or in terms of belief merely — Whether it, admitted only that the work was done, or that, together with the reasonableness of the prices. The question would have been different, if presented,- whether this evidence alone was sufficient, or whether the defendant would have been entitled to resist the force of this acknowledgment by proof of fraud or mistake in obtaining it, or of any subsequent matter destroying the justice of the demand; but no such questions appear to have arisen in the case. 2. The second assignment is, that the Court refused to permit parol evidence, to explain a supposed ambiguity in the written acknowledgment. On this, it is sufficient to say, there is no ambiguity in the instrument, apparent on the face of it, nor any intimation given of the nature of the supposed defect, showing the object to have been, to disclose a latent ambiguity : the latter, only, is by law susceptible of explanation by parol; and the character of this instrument would scarely admit of such an ambiguity. 3. The last assignment, is, that the Court rejected evidence of the language of Colly, upon the occasion of the defendants’ signing the acknowledgment. [33] On this point, the .facts are, that the defendant proved Colley to have been a desperate man, and that at the time the acknowiedment was obtained, he was in a great passion; also, that the defendant knew his character, and was a timid manbnt the witness did not recollect the precise language used by Colley. The evidence rejected, was no other than the answer of the witness to the question, whether the language of Colley was calculated to produce fear in the mind of Johnson, and thereby induce him to sign the paper, not what the language was, from which the jury could have drawn their own inferences. The effect of this evidence would have been, to make the inferences or conclusions of the witness, evidence of a fact, for the government of a jury. Without further scrutiny into the legality of this evidence, this view of it alone, shows it to have been clearly inadmissible. There was no error in the proceedings of the Court below, and the judgment must be affirmed.