Owings v. Low ( 1826 )

Stephen, J.

at this term, delivered the opinion pf the court. This action was instituted for goods sold and delivered. The plaintiffs proved, by competent testimony, the delivery of the goods as charged in their declaration, and there rested their ease. The defendant, in his defence against the action, offered to prove by a certain John Walsh, that the plaintiffs, together with the defendant and the witness, and others, associated together to build several houses on Franklin-street in the city of Baltimore; that the plaintiffs had agreed to furnish the hardware necessary for said houses, and for payment thereof were to have an interest of three-fourths in one of said houses, when finished. The plaintiffs objected to the witness, as being incompetent upon the ground . of interest, which objection the court overruled; and the question now to be decided is, whether the opinion' of the court below was correct in admitting the testimony of said witness? The principle of law is well settled, that any interest, however small, which a witness has in the event of a cause, is sufficient to render him incompetent, and will exclude him from giving testimony in the case. In 1 Phillips on Evidence, 53, the law is laid down to be, that a person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune or character, is as incompetent to give evidence, as one who may be interested to the amount of thousands. If then, John Walsh had any interest, however small, in the determination of the cause then before the court, he ought to have been rejected as incompetent. He was called to prove that the plaintiffs, the defendant, himself, and others, were jointly concerned in building certain houses on Franklin-street in the city of Baltimore-, and that the articles for which suit was brought, were, by agreement, to be applied to the building of those houses; and that the plaintiffs contracted to take, as compensation for them, an interest in one of the houses. No man has a right to prove himself a partner with another against his consent, for, in 1 Phillips on Evidence, 73, (note c,) the rule is stated to be, that the admission of one defendant is not evidence to charge another defendant with the fact of being a partner with him; yet in this ease he was called upon by the defendant to prove himself a partner with him; and the rule of law being, that every man may r$>nounce a privilege instituted for his protection, so far as the defendant was concerned, his incompetency to prove that fact was removed by a waiver of the objection on his part; but he was certainly not admissible to prove the plaintiffs likewise partners with himself and the defendant in the building of said houses. The witness was clearly interested in the event of the suit against the defendant; because the hardware, for which the action was brought, being used in building the houses on Franklin-street, in which he was jointly concerned, he was liable, not only to contribution in the. event of a recovery by the plaintiffs, but he was likewise responsible for his proportion of the costs of that suit. In Riddle vs. Moss, 7 Cranch, 206, it was decided, that an increase of liability by reason of costs, is sufficient to render a witness incompetent.

The judgment of Baltimore county court ought to be reversed on the first and third bills of exceptions; because the witness, who was permitted to give testimony to the jury, was incompetent, and ought to have been rejected. See also Starkie on Evidence, 783.

The opinion oí the court, expressed in the second bill oí exceptions, was correct, and is affirmed; because the agreement made between the witness, Boehme, and the defendant, the plaintiffs were not bound by, not being a party to the same; and therefore they should not be permitted to avail themselves of it in their favour.