Warner v. Carlton

Walker, J. The first question presented by this record, for our consideration, and which was urged with most earnestness, is whether R. H. Carlton was a competent witness on the trial below. It is a rale of uniform application that a person not a party to the record, and whose interest is equally balanced, is competent. Stokes v. Kane, 4 Scam. R. 167. This witness was the vendor of the goods in controversy, and it is urged that his interest is not balanced between his execution creditor and his vendee. In numerous cases of this character it has been held that his interest is balanced, and that he is competent. Bailey v. Foster, 9 Pick. 139 ; Prince v. Shepherd, ib. 176; Ragland v. Wickware, 4 J. J. Marsh. 530 ; Lumpton v. Lumpton's Ex’rs, 6 Mon. 116; Rice v. Austin, 17 Mass. 197 ; Martin v. Jackson, 1 Carr, and Paine, 17. There are, however, cases which seem to militate against this doctrine, but the weight is, we think, most clearly in its favor. This rule has been recognized by former adjudications of this court. In the case of Clifton v. Bogardus, 1 Scam. R. 32, where an execution in favor of Bogardus and against Moses Clifton was levied on property claimed by Mary Clifton, it was' held that Moses Clifton was a competent witness on a trial of the right of property, and his competency is placed upon the ground that his interest was against the party calling him. The judgment debtor in that case, as in this, was called as a witness, by his vendee. And we are unable to perceive any distinction in the two cases. If the interest of the witness was against the party producing him in the one case, it most undoubtedly is, in the other. Again in the case of Miller v. Dobson, 1 Gilm. R. 572, which was an action of replevin, it was conceded by counsel, and acted upon by the court, as the settled common law rule, that in replevin by the claimant of property levied upon under execution, the judgment debtor is a competent witness. It is true, counsel conceded the rule in that case, but the court say they would not hesitate to exclude the witness under the statute if they could have done so, and they must have regarded the rule as inflexible, or they would have done so on common law grounds. We have no hesitation in saying, that whether considered on principle or upon «authority the witness was competent. If he has sold with a warranty, and a warranty of title is always implied in sales of chattels, and a trial results in favor of its liability to the execution, he thereby becomes liable to his vendee for a breach of warranty, for the price, whilst if the vendee recovers the property his liability to pay the execution, remains unimpaired. In either event his liability is the same, and his interest is balanced. We therefore see no error in permitting the witness to testify. The bill of exceptions fails to state that it contains all of the evidence introduced on the trial in the court below, and we cannot inquire whether the verdict is supported by the evidence, but it must be presumed that it is. The evidence that is contained in the bill of exceptions, tends to prove a delivery of possession by witness to plaintiff at the time of sale. Such being the case it was for the jury to determine whether the title and possession went together or not. It would have been error in the court when there was such evidence before the jury, to have instructed them, that the sale was fraudulent per se. Had there been an entire absence of all evidence of a change of possession accompanying the sale, then such an instruction would have been proper, but so long as there was evidence of that fact, however slight it might be, and however clearly it might have been rebutted, it was still a question for the jury and not for the court. The defendant’s 13th instruction was, therefore, properly refused. His 12th instruction is based upon the hypothesis that the vendee had no right to employ the vendor as a clerk to sell the goods, in connection with others. There is no doubt that it is a circumstance to be considered on the question of fraud, but undoubtedly may be explained, but it is not per se a fraud that admits of no explanation. If the vendor after the sale without a delivery of the goods, were to remain in the sole and exclusive possession, it would amount to a fraud in law, but such is not the evidence in this case. No evidence showed that E. H. Carlton was in the sole and exclusive possession, but it tended to show that he was only acting as a clerk, and that Telfer was the person having charge of the concern, and was the principal in its management. And for aught that appears the evidence may have been conclusive of that fact. This instruction without modification, so as to have left it to the jury to determine from the evidence whether he had remained in the exclusive possession and control of the goods, without ever having delivered them to the purchaser, was erroneous, and therefore properly refused. There is no objection perceived to the modification made to defendant’s first and second instructions. The various other instructions as asked and given presented the law fairly, as it arose on the facts of the case so far as we can determine from that contained in the bill of exceptions. We see no error in the record, and the judgment of the court below is affirmed. Judgment affirmed.