Carpenter v. Wilmot

Ellison, J. This action is based on a promissory note purporting to have been executed by defendant’s intestate, as N. J. Wilmot. The defence put plaintiff to the prpof of the execution of the note. The case was begun in the probate court. On appeal to the circuit court, defendant prevailed and plaintiff brings the case here by writ of error. * [592] The evidence for plaintiff tended strongly to show that Mrs. Wilmot authorized the execution of the note.. That for the defence was wholly circumstantial; all of it with one exception, bearing upon the question, though it must be confessed some of it, quite remotely. A son of the deceased was a witness for the defence and against the objection of plaintiff was permitted to say: “I never heard my step-mother admit signing the note sued on. I never heard her say anything either way about this note ; but she always told me that she had never given any note to any one.” ■ The greater portion of this was wholly irrelevant and immaterial and the balance was clearly hearsay. But the difficulty is, it appears to have been drawn-out on cross-examination by the party now complaining of it. The question is not given to which this evidence purports to be an answer, and we can only presume the answer is responsive to some question asked by plaintiff. This being true he ought not to be heard to complain of that which he drew out. If a witness on cross-examination, volunteers irrelevant K statements, not responsive to the question propounded, they may be objected to by the party asking the question. But, as stated, the record here does not disclose the question and for aught we know the court may have overruled plaintiff’s objection for the reason, that he called for the testimony himself. > A step-daughter of deceased, called by defendant, was permitted to state, over plaintiff’s objection, on examination in chief, that, “ she never at any time was called on to sign the name of said' Nancy J. Wilmot, or to witness the name of the said Nancy J. Wilmot, to any note to plaintiff, W. II. Carpenter, and that she never saw any note signed by said Nancy J. Wilmot, to said Carpenter ; nor was she called upon at any time to witness or attest the signature of said Nancy J. Wilmot to any note whatever to said Carpenter.” We regard this evidence as wholly irrelevant and immaterial, and, under [593] the state of the evidence in the case, was prejudicial to plaintiff and for the admission of which we will reverse-, the judgment. Plaintiff objected to all evidence offered by defend-, ant on the ground that, as the only defence was non est' factum,, evidence tending to show a partial or total failure of consideration could not be received under-such plea. We do not regard the evidence as offered, for the purpose alleged by plaintiff. It was evidently-intended only to show the improbability of the deceased executing a note -to a party whom she did not owe. For-this purpose it was admissible. The judgment is reversed and the cause remanded.. All concur.