Dexter v. Clemans ( 1835 )

Wilde J.

delivered the opinion of the Court. This was an action of assumpsit on a promissory note ; and the defence was, that the note was given without consideration. To maintain the defence it became material to show, that the plaintiff had an interest in a certain estate, which one Lewis Putney had the right to redeem. The equity of redemption had been sold on execution and had been purchased by one Spurr, and by him was sold to one Darling, who was offered as a witness to prove a conversation between the plaintiff and Putney just before the note of hand in question was signed by the defendant, he being a surety of Putney. A part of this conversation took place when the defendant was not present, and this part of the conversation was not allowed to be proved. And we think it was clearly inadmissible ; especially as before the defendant signed, the plaintiff stated to him what he said was the agreement between him and Putney, and this statement was given in evidence to the jury.

The plaintiff then offered to prove by Peter Darling, that no agreement had been made between him and the plaintiff to pay the plaintiff any sum or consideration, if the estate should not be redeemed. This evidence was rejected ; but Peter Darling was permitted to testify that he had paid nothing to the plaintiff, and was not then liable to pay him any thing on this account.

We think the court erred in rejecting the evidence as to the supposed agreement between Darling and the plaintiff. For if such an agreement had been made, whereby the plaintiff was to receive any thing, or to derive any benefit, if the estate should not be redeemed, the fact would be material in maintaining the defence set up, and consequently the plaintiff should have been permitted to show, if he could, that in fact no such agreement had ever been made.

New trial granted.