Curtenius v. Wheeler

The Opinion of the Court was delivered by Trumbull, J. This was a suit upon two promissory notes executed by the defendants to G. M. & S.. Thomas, and by them assigned to the plaintiffs as collateral security for a debt which they owed the plaintiffs. Upon the trial in the Circuit Court, the defendants-introduced evidence going to show that the consideration for which the notes were given had failed, and the plaintiffs offered one White as a witness by whom they proposed to prove facts material to the issue, but his testimony was objected to and excluded by the Court on the ground that he was interested in the event of the suit. White, when examined touching his interest, testified, “that he had executed a mortgage to the plaintiffs of his real estate, to secure the payment of a debt due from said payees, the Thomases, to the plaintiffs, for the security of which said debt of the Thomases, said two notes had also been assigned by payees to the plaintiffs; that if judgment should be recovered in this case, the money would go to discharge the debt which. the mortgage was' given to secure; but he stated that he liad no other interest in the suit, and that if he should he compelled to pay anything by reason of his having given said mortgage, the said payees would be liable to pay the same to him, as he, White, was security only for them.” Judgment was rendered for the defendants, and the plaintiffs bring the case here and assign for error the decision of the Court, which was excepted to at the time, excluding White from testifying. The general rule that to disqualify a witness from testifying on the ground of interest, he must have some certain, legal and immediate interest in the result of the cause, or in the record, is well settled | (1 Stark. Ev. 102; 1 Greenl. Ev. § 387;)but the difficulty arises in applying this rule, and determining in each particular case what the nature of the interest is. In this case, it is difficult to conceive how the record could be evidence either for or against White in any other suit. He was not a party to it, and of course would not be bound by it, nor could it be introduced in any other proceeding to establish the facts therein contained either to his benefit or injury. White had made himself liable upon the mortgage, and in a suit to enforce its collection, the record of this case would not be evidence one way or the other. A judgment upon the notes followed by satisfaction, would, to that extent, discharge the debt for which White was security, and so would payment of the notes without judgment. But to avail himself of the benefit of such satisfaction or payment, the judgment obtained in this case would be -of no use as it would not establish that fact. Nor had White such an interest in the result of the cause as to disqualify him from testifying. The most that can be said is, that if the plaintiffs were unable to make their claim out of the defendants and the Thomases neglected to pay it, the witness might be called upon to do so, and in that event he would have to look to-the Thomases alone for reimbursement. To obtain it, he might or might not be forced to resort to a suit, and if he should, greater difficulty would follow in securing himself harmless than if the debt were discharged at once by collecting the amount from the defendants, but more or less difficulty in protecting the rights of the witness shows but a remote or contingent interest. The witness may never be called upon to pay anything even if the plaintiff fail in this suit. The Thomases will still be between him and the plaintiffs, and a payment by them would of course discharge him, or if compelled to pay in the first instance, he still has his remedy over, and it is only upon the double contingency that he would be compelled to pay the mortgage and that the Thomases would be unable to refund, of which there is no evidence in the record, that he could possibly suffer loss. The law does not regard ap interest so remote and contingent. The circumstances disclosed might well be supposed to have more or less influence upon the mind of the witness, but they were circumstances going to his credit and not to his competency. The case of Gregory v. Dodge, 14 Wend. 593, is in principle precisely analogous to this. In that case, the witness by his testimony discharged a debt due to the defendants from himself by fixing it upon the complainants, and therefore appeared to be interested in favor of the defendants by -whom he was called as a witness, but it appearing that the -debt belonged to the complainants to pay, and that if the -defendants should have to collect it from the witness, he •would have a remedy over, he was held competent, and Justice Nelson, in giving his opinion in that case remarks: ■“If the account is now settled in this suit, the witness is discharged from his individual liability; if not, he may be obliged to pay it and look to the complainants. The remedy may be attended with more difficulty as paying the amount and being turned over to the complainants for re-imbursement, than at once canceling it by an adjustment now between the parties; and to the extent of this supposed difference the witness may be regarded as not indifferent. But upon the facts the remedy is as certain in the one case •as the other. The witness may and will have a bias, ¡because the discharge from liability is more speedy and and practically more certain in one case than the other; but, upon established principles, I think he is legally indifferent.” The case of Lake v. Auburn, 17 Wend. 18, re-affirms the doctrine laid down in the foregoing case, and the same principle is established by numerous other cases. Page v. Thomas, 6 Meeson & Welby’s Rep. 732; Milward v. Mallet, 2 Caines Rep. 77; Greely v. Dow, 2 Metcalf, 176; Martineau v. Woodland, 12 Eng. Com. Law R. 453. In this last case, the witness had accepted a bill for the sum for which the action was brought, which bill had been dishonored and was in the hands of the plaintiffs in whose behalf he was called. It was objected that it was his interest to fix the defendant in that action; for if the defendant paid the plaintiffs, the witness would be exonerated on the bill. To this it was answered that the witness was indifferent, his interest being equal each way, for if obliged to pay the bill, he would recover the amount of the defendant, and he was held competent. The foregoing authorities, and there are many others to the same effect, would seem to establish the rule, that a witness is never disqualified from testifying on account of interest in the result of a cause, when the extent of his own liability or claim is previously fixed and certain, and a judgment either way would not directly and certainly increase or diminish that liability or claim. This rule would not allow a surety upon a bail, appeal or official bond to testify in a suit against the principal in reference to a matter for which the surety might ultimately be made liable, because the judgment to be obtained would be evidence of and^fix the surety’s liability in a subsequent suit upon the bond; but the extent of White’s liability in this case was fixed by his mortgage, and did not depend upon the amount, or whether any judgment was obtained against Wheeler & Putnam. He was therefore a competent witness. The judgment of the- Circuit Court is reversed and the cause remanded, Judgment reversed.