Ferry v. Parks

Hanna, J. This was a suit by Parks and Hite against White and Ferry. White as drawer and indorser, and Ferry as indorser of a bill of exchange; and also against them for property sold and delivered, &c. The only question insisted upon in the brief of the appellant, is, as to whether the ruling of the Court in refusing certain evidence, was correct. To determine this question, it is proper to look to the issues. There were six paragraphs in the complaint. The first, second, third, and fourth, were upon a bill of exchange. The first, third, and fourth paragraphs attempted simply to charge White as drawer and indorser, and Ferry as indorser of the bill. The second charged them as joint indorsers thereof. The fifth and sixth attempted to charge them jointly as upon common counts for goods, &c. White was defaulted, and Ferry answered in six paragraphs — first, a general denial; second and fourth, as to the first four paragraphs of the complaint, that the signature of said defendant was obtained by fraud and without consideration; third and fifth, that said signature was obtained without consideration; sixth, as to the fifth and sixth paragraphs of the complaint, that said defendant, Ferry, is not indebted, &c.; that said White, on, &c., at, &c., fully accounted with said plaintiffs, and found due to them the sum of 5,000 dollars, for which said White drew the bill of exchange sued on, which was then, &c., accepted by Baker Brother, upon whom it was drawn, and upon request of plaintiffs, was indorsed by him to them in full satisfaction, &c., of all sums in said fifth and sixth paragraphs mentioned, and that the same was accepted, &c. Reply, by way of general denial. The bill of exceptions states that “said defendant, Ferry, [167] further to sustain the issues on his part herein to be proven, produced David White, the other defendant, and offered to prove the issues aforesaid by him; but to the introduction of the said White as a witness herein, said plaintiffs objected — 1. Because said White is a party, &c. 2. Because he is interested in the result of this suit. Which objection was sustained, &c. The Court decided that White could not testify generally in the case. The defendant, Ferry, then said he would propose certain points upon which he would ask to examine said White, but did not do so; and the Court did not decide that White could be a witness to no point or points in the case, but only that he could not be a witness generally.” There was a verdict for the plaintiffs for 5,026 dollars. It is insisted by the appellants that under our statute (2 R. S. §§ 20, 41, 302, 369, of the practice act), “a party to the record may, in all cases, that being the only objection, be a witness for his co-defendant.” The appellees “ concede that under our code, White was a competent witness for his co-defendant, as to the issues made upon either the first, third, or fourth paragraph; but contend that as to the issues made upon the second, fifth, and sixth paragraphs, he was incompetent.” And they further contend that even if he was improperly excluded from testifying upon the issues in reference to which he was a competent witness, the verdict and judgment for the plaintiffs, are not upon .those paragraphs, and therefore should not be disturbed. The bill was dated December 31,1855, payable at New York, at seventy-five days, &c. The verdict was found, October 4, 1856. The bill and its interest, therefore, was, up to that date, 5,162 dollars, 50 cents; and 5 per cent, thereon, as damages, would have been 250 dollars more. The evidence of McKernan, the cashier and bookkeeper of White, was, that the bill sued on was for a balance of 4,868 dollars, 34 cents, due plaintiffs at that date on hogs, &c. The amount of the verdict is even less than that sum with interest from that date to the day of finding, &c; but [168] if that sum was to be considered as not due until the end of the seventy-five days, then the interest thereon would make about the amount of the verdict. It is manifest that the finding of the jury was based upon that erroneous assumption, and was upon the fifth and sixth paragraphs; but that error was favorable to the appellant, and he cannot complain of it. J. W. Chapman, J. B. Meriwether, and H. O'Neal, for the appellant (1). C. E. Walker and A. W. Hendricks, for the appellees (2). As the testimony of While could not have been received upon the issues made upon those two paragraphs, we are inclined to the opinion that even if the Court erred in the ruling, under the circumstances, it should not reverse the judgment. But we are further of the opinion that the ruling of the Court was, in effect, a decision in favor of the admission of the testimony of White, upon the issues in reference to which he was a competent witness, and was, therefore, correct. He was not competent to sustain the issues generally, upon the part of Ferry, and when offered for that purpose, was correctly excluded if that was the only ground or condition upon which the defendant would introduce him. It is insisted that he ought to have been admitted generally, and that the proper time to exclude his testimony would have been when an improper question was asked. This position may or may not, in practice, be correct, where it is not avowed for what purpose the witness is offered — that point is not before us; but when the Court is notified in advance, that a witness is offered both for a legal and an illegal purpose, we do not see any impropriety in the Court deciding that he may be admitted for the one and not for the other. This certainly does not divest the party of the right to introduce him upon the issues upon which his evidence should be received, and would rather have a tendency, in our judgment, to shorten and facilitate the investigation of questions of fact. Per Cwriam — The judgment is affirmed, with 1 per cent, damages and costs.