Fennell ex rel. Fennell v. McGowan , 58 Miss. 261 ( 1880 )

Chalmers, C. J.,

delivered the opinion of the court.

Howard Falconer borrowed from McGowan $500, giving his own note and depositing as collateral a note for $1,500 on E. S. Stith. Stith subsequently paid to Falconer the amount due on his note, well knowing that it had been hypothecated to McGowan, but relying upon Falconer’s promise to take it up and surrender it, which the latter failed to do. Subsequently to this payment by Stith, McGowan sold the Falconer note to John D. Fennell, agent of plaintiff, M. T. Fennell, and with it delivered the collateral Stith note. Fennell held both notes until the Stith note had become barred by the Statute of Limitations. Fennell being now dead, his administratrix brings this suit, for the use of M. T. Fennell, against McGowan upon his indorsement of the Falconer note.

The learned judge below rightly instructed the jury that the payment of his note by Stith to Falconer, at a time when the former knew that it had been hypothecated to McGowan, was a nullity so far as McGowan was concerned ; that the latter could have compelled Stith to pay it again ; that this right passed unimpaired to McGowan’s assignee, Fennell; and that the latter, by taking no steps to collect it, and allowing it to become barred by the Statute of Limitations, became liable to McGowan for its value, and as that value exceeded the amount due on the Falconer note, it constituted a perfect defence to this action. He rightly refused to instruct the jury that these facts would constitute no defence if McGowan knew of Stith’s payment at the time when he transferred the note to Fennell, both because there was no proof that tended to show such knowledge on the part of McGowan, and because, as such knowledge obtained by McGowan after the payment was made would not have defeated his own right to compel Stith to pay again, so it would not have defeated Fennell’s right to do the same thing. ■

There was no error in permitting McGowan to testily. The fact that the result of this suit may cause the institution of a suit by M. T. Fennell against the estate of John D. Fennell, for the failure of the latter to deal properly with the collateral held by him as agent of the former, does not disqualify McGowan to testify in this case. In such a suit McGowan will have no interest, and in this suit John D. Fennell’s estate has no interest. To work a disqualification of an interested witness, the estate of a decedent must be directly affected by the pending suit. That it may be ultimately affected in some other suit is immaterial. Stone v. Love, 56 Miss. 449.

Judgment affirmed.