School District No. Two v. Rogers

Stockton, J. The first question is, whether Hopkins, as payee, was rightfully admitted as a witness for plaintiff. In the absence of any evidence, showing that the witness had a direct, certain, legal interest in the suit, we think the fact that the note was made payable to him and others, as school directors, does not show that he liad such an interest as to render him incompetent to testify, in a suit brought upon the note in the name of the school district. As school director, he was merely the agent, or trustee, of the dis [318] trict; and though the payee of the note, was not the real party in interest. In refusing to give the instruction, we think the court erred. Under the issue joined, and under the evidence before the court, we think the instruction was proper to be given. Where it is made to appear, that the conveyance was to be made upon the payment of the purchase money, the courts regard the two acts as so far dependent, that it is held that to entitle the plaintiff to recover, he must show a performance, or offer to perform the contract on- his part, unless the defendant has waived a tender of the deed. 2 Hilliard on Vendors, 71; Bank of Columbia v. Hagner, 1 Peters, 467; Leonard v. Bates, 1 Blackf., 172; Woods & Hobert v. Morgan, Morris, 179 ; Ib., 380: Judgment reversed.