Kalmes v. Gerrish

By the Court, Garber, J.: We think there was error in the admission of the agreement between Coulson and the plaintiff, without proof of its execution by the subscribing witness. If the only reason for the rule were the presumption that the subscribing witness may. know facts of which others are probably ignorant, there would be at least plausibility in the argument of respondent that, as by our statute, the parties are competent witnesses, and as no presumption can arise that the subscribing witness is better informed of the facts relating to the execution of an instrument than the parties to the instrument, the 'maxim “ eessante rations,” &c., should be applied. Bui; there is another reason for the rule, and one which forbids the application of the maxim invoked. “ The law requires the testimony of the subscribing witness, because the parties themselves, by selecting him as the witness, have mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of the circumstances which then took place.” Starkie on Ev., Sharswood, 458. It was not the intention of the statute to abrogate this rule of evidence, and it has been decided that such is not its operation. Brigham v. Palmer, 3 Allen, Mass., 452; Whyman v. Gath, 8 Exch. 803; McMurtrey v. Peebles, 4 Monroe, 40. It is immaterial whether the writing is the foundation of the action, or is introduced collaterally. The rule and the reason of it are equally applicable in the one case as in the other. Roberts v. Tennell, 3 35 Monroe, 250; Starkie, 507. We cannot disregard the error assigned as necessarily harmless. The testimony as to the making of the express promise found by the court was conflicting, and the weight given by the judge to the facts evidenced by this writing may have turned the scales in favor of the plaintiff. Unquestionably, the existence of this written agreement tends to enhance the probability of the making of the oral agreement testified to by plaintiff and found by the court. A point similar to that raised but not decided in Mellen v. Whipple, 1 Gray, Mass., 317, is made by appellant — that no promise in fact is so stated in the complaint as to support a judgment'on the finding of such a promise. It is unnecessary to pass upon it here, as the plaintiff, if so advised, can amend his complaint and obviate the objection. The appeal purports to be taken from the judgment, and from an order overruling the motion for a new trial. The record fails to show that the motion has yet been disposed of, or acted upon by the district court. The appeal from the order is therefore premature, and is dismissed. The judgment appealed from is reversed and the cause remanded.