Hallet v. O'Brien , 3 Ala. 455 ( 1842 )

GOLDTHWAITE, J.

We fully, agree with the counsel for the plaintiff in error, that it would be improper to permit a witness to disprove his interest, when that is oqce established, , but in this case,, the. interest did not appear from the mere, inspection of the writings- given in. evidence; these established nothing more, than the fact that a contract had. been made by the Vvitness to do a particular job of work; that this work was the same, for a portion of which the. plaintiff sought a recove-, ry, no where appears- except from- the statement of the witness. Whether this statement,, connected with the written evidence, showed a disqualifying interest, is the matter to be, now examined.

We think the fair conclusion to be deduced from, what the witness said, is, that, he. employed the plaintiff to. do-the work, and it is not an unreasonable inference that Kennedy’s name was not. then disclosed- Having thus made the contract with the plaintiff without disclosing the. name o.f Kennedy., even if it is admitted that he was'his agent, he became personally responsible,, and therefore is- interested on this side of the case, as shewn by the decision cited from Campbell. McBrain v. Fortune, 3 Camp. 317.

But let us examine and see how his interest stands on the other side. Should the plaintiff recover, he then becomes responsible to the defendants, as the executors of Kennedy, for the precise sum they shall be compelled to pay for doing the work, which it is admitted the witness was bound to perform. It seems to us impossible to escape from this conclusion; and we must hold the witness to stand indifferent between these parties, because he is liable precisely to the same extent, to whichever of them is unsuccessful.

And this brings the case within the influence of the perfectly well recognized principle, that if the interest of the witness is equally balanced between the parties, he is competent. Hudson v. Robinson, 4 M. & S. 475; Ridley v. Taylor, 13 East, 175; Evans v. Williams, 7 Term, 480; Ilderton v. Atkinson, ib. 481; Shuttleworth v. Stephens, 1 Camp. 407; Milward v. Hallett, 2 Caines, 77.

We are compelled to admit that we cannot distinguish the principle decided in the case of Everton v. Andrews, 4 Mass. 653, from the case we have just now considered, but we must decline our adoption of it, because it seems entirely at variance with well established rules. In doing this, we are supported by the opinion of the Supreme Court of New-York, in Marquand v. Webb, 16 John. 88, in which the Massachusetts case is examined, and denied to be law.

The other points made in this case have been examined, and do not call for a written opinion.

Let the judgment be affirmed.