M. Darragh & Co. ex rel. Darragh v. Stevenson , 183 Pa. 397 ( 1898 )

Opinion by

Mr. Justice Mitchell,

M. Darragh was prima facie incompetent as a witness both as a surviving party to the contract in action and as having an adverse interest to defendants’ decedent. But after some uncertainty on the point it was said by the present chief justice in Dickson v. McGraw, 151 Pa. 98, that tbe disqualification depends “not only on the fact of being a remaining party, but having an adverse interest, and even such parties may be made competent by disclaimer of title ” (that case being an ejectment) “ and by release or extinguishment of interest in the event of suit.” And in Tarr v. Robinson, 158 Pa. 60, it was held that Dickson v. McGraw “has settled the construction of the act of 1887,” notwithstanding Duffield v. Hue, 129 Pa. 94, and some others of the earlier cases.

The present question therefore is narrowed down to whether M. Darragh had made himself competent in the manner required by the act of 1887. Section 6 of that act provides that '“ any person who is incompetent under clause (e) of section five by reason of interest .... shall become fully competent for either party by a release or extinguishment, in good faith, of his interest, upon which good faith the trial judge shall decide as a preliminary question.” The plaintiffs were M. Darragh and S. H. Darragh, composing the firm of M. Darragh & Co., and their claim was upon a note payable to the firm. At the trial a paper was produced containing an agreement by which, after reciting that M. Darragh was indebted to the firm to a greater amount than S. H. Darragh and S. H. Darragh was willing to accept M. Darragh’s interest in the present suit in full satisfaction of his [S. H. D.’s] interest in the indebtedness of M. D. to M. D. & Co. without recourse, etc., and thus close their individual accounts with the firm, the said M. Darragh “hereby releases and extinguishes his interest in said judgment as completely and entirely as though he had never in any manner whatsoever been connected therewith.” It is apparent that this instrument, the substance of which is given thus fully, although the words “release and extinguish” are used, is neither a release nor an extinguishment, but an assignment. It is not a release, as it is not made to the party against whom the claim is asserted nor for his benefit. And it is not an extinguishment, for the full claim is still in existence with no change but a transfer to one of the claimants. The words used in the statute if taken in their strict meaning would require that the witness’s interest in the subject should be effectually terminated, not only as to himself but as to the other party against whom he is about to testify. This result is fully implied in the words, release and extinguishment. An assignment is altogether different. It terminates the claim only so far as the witness himself is concerned, leaving it in full force as to the party charged by it. The distinction is very forcibly expressed by Lowrie, J., in Haus v. Palmer, 21 Pa. 296, in reference to qualification of a legatee by assignment of his legacy: “ These principles do not include the case of a devisee or legatee assigning his claim in order to prove the will on which his claim depends ; for no one is bound to accept a benefit thrown upon him by testacy or intestacy, and if he rejects it he is without interest; whereas one who assigns the benefit first accepts it, and then, if he wants to be a witness, gets clear of it for a reward proportioned to the distinctness of the testimony which he is expected to give. Onr law does not punish champerty as a crime, but it does not encourage it, nor by its very rules expose people to the temptation of perjury or subornation of it.” If the act of 1887 had stopped with the words “ release or ex-tinguishment ” it is clear that a witness excluded by section five for interest could not qualify himself by an assignment. But the statute adds the requirement that the release shall be in good faith, of which the court shall judge as a preliminary question. A release or extinguishment given to the adverse party must in its nature be absolute, and could hardly be other than in good faith. The language of the act therefore would seem to imply some latitude in the sense in which those words were used.

It is not necessary however to decide at present whether any mere assignment of his interest will qualify a witness under the statute, because we regard it as clear that an assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends. In Post v. Avery, 5 W. & S. 509, it was held that an assignment of a cause of action, the motive of which was to qualify the assignor as a witness, would be treated as colorable only, and ineffective for the purpose. Without entering into the labyrinth of contentions and distinctions to which that famous case gave rise, its substantial principle is right, that an act of a party which increases his legal rights at the expense of another must affirmatively appear to have been done with other motive than to evade the law. The general purpose of the act of 1887 was to open the mouths of all witnesses so far as it could be done with that regard for equality which justice demands. If both parties are living, both may be heard, notwithstanding their interest, but if one be dead, equality shall be maintained by excluding the other from the stand. No rule on this subject has ever been successfully formulated in language which will invariably and under all circumstances produce equality or do complete justice, but the act of 1887 approximates to that end as nearly as has yet been reached. Hence it makes provision to some extent for exceptional cases, and among them the case of an interested witness who divests himself of his interest. But it requires that the parting with the interest shall be done in good faith, and this means that it shall not have been done merely to evade the disqualification of the law.

In the present case the witness did not release or extinguish his interest, but merely assigned it; the assignee was his partner and brother, joint party with him to this suit, and the assignment was not made until the case was at issue, and on the very eve of trial. It is impossible to resist the conclusion that its real purpose was" to evade the law and to give the plaintiffs’ claim that advantage against the dead man’s estate which the statute intends to prohibit. The judge committed no error in ' excluding the witness.

The other assignments of error are to the exclusion of plaintiffs’ books showing a charge against decedent and one Bigger, and a letter from decedent referring to a note. Neither item’ of evidence was relevant. The only issue before the court was the genuineness of the decedent’s signature. Had the issue been on a plea of nonassumpsit the books would have been competent evidence, but merely to show that Bigger and Stevenson owed a debt to plaintiffs did not tend to show that Stevenson executed this note. So as to Stevenson’s letter. It was dated nearly five years after the note in suit, and fails to refer to it in any way which can be said fairly to identify it. The letter if admitted would be no more than a basis on which the jury might guess that it referred to the note in suit.

Judgment affirmed.