Fogg v. Babcock , 41 Me. 347 ( 1856 )

Appleton, J.

The note in suit was payable to Joshua Eogg, and after its maturity was by him transferred to the plaintiff by indorsement.

Benjamin Barker, a witness called by the defendant, testified that the defendant requested him to ask Joshua Eogg to show him the credits on his book in favor of the defendant, and that he communicated this request to Eogg, by whom the credits were shown him. He was then, notwithstanding the plaintiff’s objections, permitted to state what those items of credit were. Joshua Eogg was then called on the part of the plaintiff, who produced his books, containing the account between him and the defendant, and to which the previous testimony of Barker referred.

A new trial is claimed because of the admission of the testimony of Barker. Were the testimony of Barker to be regarded as improperly received, it is difficult to perceive why, for that cause, a new trial should be granted. Certain facts having been proved by the plaintiff, by competent evidence, received at his own instance, no new trial should be granted because the same facts at an early stage of the proceedings may have been established by testimony justly liable to exception. The plaintiff cannot have been injured by the proof of facts which do not appear to have been disputed, and which his own witness has shown to be true, however objectionable may be the medium through which the proof was derived, when the same facts were proved on the part of the defendant.

A note of hand is a chose in action and assignable by indorsement. It is none the less to be regarded as assignable because it so vests in the assignee, that he may maintain an action upon it in his own name. The assignor in the case at bar was called and examined as a witness by the plaintiff, a party “ deriving title through and from him.” The defendant, “the adverse party,” was admitted under the statute of 1855, c. 181, § 3, to testify “to the same matter in his own behalf,” about which the assignor, Joshua Eogg, in his direct examination, had previously testified; and his testimony was especially limited to that extent. The evidence, as thus presented, is equally within the letter and the spirit of the Act to which reference has been made. Any other or different, construction would render it without meaning or effect.

Exceptions overruled. — Judgment on the verdict.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.