Sawyer v. Choate

NewmaN, J. It is said that the testimony of Choate and Grattan, to the effect that Kiel’s indorsement was on the note at the time when it was delivered to Bray <& Choate, was incompetent, on the ground that Kiel is dead, and that this was allowing opposite parties to testify in respect to a transaction or communication by him [them] personally with a deceased person,” in contravention to sec. 4069, B. S. Certainly, neither witness is within the literal terms of the section'. The evidence does not disclose that either was present at or witnessed the act of indorsement. They testify, simply, that the signature was on the paper at the time when it was delivered. The testimony did not relate to any transaction or communication had personally with the deceased, and was competent. Daniels v. Foster, 26 Wis. 686. Choate was permitted to testify that he furnished the money on thé credit of Grattan and Kiel. This is said to be double error; that it permitted Choate to testify, in effect, to a claimed arrangement with Kiel, and was a conclusion founded on the fact of the arrangement claimed. It may be that the presence of the indorsement upon the paper is some evidence that it was put there in pursuance of some previous arrangement; but it does not show what that arrangement was, or whether it was made with the deceased personally. So it could not be error on the ground first [536] stated. And, as to the second ground of error alleged, the testimony is to the effect, simply, that credit was given to the indorsement of Kiel. It is not that credit was given to any previous arrangement with him personally or otherwise. But, even if error, it was not prejudicial; for the mere fact that the indorsement was on the paper at the time of the delivery of the money was evidence sufficient that the money was paid on the credit of the indorsement. Snyder v. Wright, 13 Wis. 689. Additional evidence, to a fact already sufficiently proved by competent evidence, cannot well be prejudicial error, even if erroneously received. Grattan was permitted to testify that he had received a letter, purporting to be from Kiel, and which “ appeared to be signed ” by him; that he was unable to read, and so had shown the letter to Ghoate, who had read it for him. The letter had not been preserved, but had become lost. Choate was permitted to identify the signature of Kiel to the letter, and to testify to its contents. He testified that “it instructed Grattan to raise the money, and he would be here the first of the week, and indorse paper,” etc. The letter was not a transaction had personally with Kiel, within the intention of sec. 1069, R. S.; and it was competent for both Grattan and Ghoate to testify to its existence. They might also testify that, in their opinion, the letter was genuine. This is settled, for this state, by Daniels v. Foster, 26 Wis. 686. Nor is there any reason, founded on the statute, why Ghoate, being a competent witness in the case, was incompetent to testify to the contents of the letter. There was no evidence by either defendant of transactions or communications had by them personally with Kiel. Some complaint is made of the instructions given by the court. The court instructed that “ it is claimed by the defendants (1) that this note was indorsed by Kiel before it was. delivered to Bray ds Choate; (2) that, if it was not indorsed by Kiel until after delivery to Bray & Choate, then such in537 dorsement was made pursuant to .previous agreement, by which he was to indorse as surety for Grattan, which would amount to the same thing, in law, as if the note had been indorsed before delivery. If you find, from the evidence,, that either of these propositions is true, then your verdict should be for the defendants; but if you find that neither of them is true, then your verdict should be for the plaintiffs. And in this respect it makes no difference whether he,. Kiel, indorsed at the request of the maker, Grattan, or of the-payees, Bray & Ohoate. For the material question is, not at whose instance the indorsement was made, but did the payees-part with their money upon the strength of the indorsement and relying upon the credit of the indorser? The question for you to determine, therefore, is, Did Kiel indorse this note as surety indorser for Grattan, or for the accommodation of' Bray dé Ohoate? ” Several criticisms upon these instructions are made: (1) “ That it told the jury that, if the note was indorsed after delivery to Bray dé Ohoate, then the indorsement was made pursuant to a previous agreement,” thus taking that question from the jury. The court said, in effect, on that point: “ The defendants claim that, if the note-was not indorsed by Kiel until after its delivery to Bray dé-Ohoate, then it was indorsed pursuant to a previous agreement. If you find that is true, your verdict should be for the defendants.” That certainly left that question to the jUI7- _ _ It is also complained that the court instructed that it.. made no difference at whose request the indorsement was made, whether at the request of the maker of the note, Grattam,, or at the request of the payees of the note, Bray dé Ohoate. But this is not a fair estimation of what the court really did charge. It is familiar that the whole charge is to be read and construed together. The whole of a legal proposition, with all modifying facts, suitable for an instruction to the jury, cannot always or often be compressed [538] within a single sentence. The court here plainly told the jury that the important question was whether the purpose of the indorsement was to become surety for Grattan, and Bray t& Ghoate parted with their money -on the credit of the indorsement; and, if that was the fact, it made no difference at whose request he became such surety. And that, plainly, is the law. The charge seems to have given ' the case fairly to the jury. No important error is found in the record. By the Court.— The judgment of the circuit court is affirmed.