Pridgen v. Hill , 12 Tex. 374 ( 1854 )

Wheeler, J.

The errors assigned, which it is material to notice, relate to the rulings of the Court upon the admissibility of evidence, in instructions to the jury, and in refusing a new trial.

It was objected to the deposition of the witness Estlin, in answer to the 3rd and 5th interrogatories, that his answers did not furnish the best evidence of the matter to which he testified.

The object of the deposition was to prove the correctness of an account consisting of various items, which do not appear to have been evidenced by writing, and which it was, of course, competent to prove by parol. Among the items were charges for acceptances of certain drafts. But if it was intended to object that these drafts were not produced, the objection should have been more specific. Upon an objection to the proof of such an account in general terms, that it was not the best evidence, without indicating what better evidence of any particular item was required, or to what item or items the objection was intended to apply, the Court was not required to search through the several items to see if the objection was well taken to any one of them. When it was apparent that the evidence was competent to prove the account generally, if there were particular items of which a higher grade of evidence might have been required, it was but reasonable that the defendant should have pointed out the items by his objection.

But if the Court improperly admitted the answers of the witness in evidence, there was other competent evidence amply sufficient to establish the defendant’s indebtedness. The jury must have found for the plaintiff upon the other evidence in the case ; and had they found otherwise, their verdict should, on motion, have been set aside as manifestly against evidence. The admission of improper evidence will not authorize a reversal of the judgment, where there was sufficient competent evidence to warrant the verdict, (Davis v. Loftin, 6 Tex. 489 ; Herndon v. Casiano, 7 Id. 322,) and especially where, as in this case, it manifestly appears that the jury have rendered the only verdict they could have legally rendered had the evidence objected to been excluded.

It was further objected to the answer of the witness to the 7th interrogatory, and to the answers of the witness McKinney to the 3rd and 4th interrogatories, that it was not competent to prove by parol the matters to which they deposed, respecting the liability of the defendant to pay interest. And it is insisted that the verdict finding interest was unauthorized.

It is alleged in the petition that the interest claimed, that is, interest at eight per cent., was the interest “ agreed on ” between the parties. And in his answer to the 3rd interrogatory, the witness McKinney deposed that the defendant, when the account was presented to him, admitted its correctness with certain specified exceptions, which do not include the charge of interest;. and in his answer to the 4th interrogatory, the witness deposed that the defendant said that “ the “ rate charged at eight per cent, was what he had been in the “ habit of paying the plaintiffs and was willing to pay and “ expected to pay.”

The averment in the petition was, we think, a sufficient averment of an agreement to pay interest; for which it certainly was competent to contract without writing. And we think it cannot be doubted that the deposition of the witness afforded evidence of such a contract sufficient to support the averment, and, consequently, to warrant the verdict.

Whether the contract was made in Louisiana or this State, it was competent for the parties to contract for the payment of interest and eight per cent. (Andrews v. Hoxie, 5 Tex. 171.) And the rulings of the Gonrt, therefore, admitting evidence of the law of interest of Louisiana and the custom- of New Orleans, are immaterial. The verdict allowing interest was warranted by the allegation and the proof, and there was therefore no error in refusing a new trial for the cause assigned.

It is unnecessary to revise the rulings of the Court in instructions upon the statute of limitations. The evidence established an account current between the parties, consisting of debits and credits, all of recent date, and running down to a period shortly before the commencement of the suit. The statute therefore could not possibly have availed the defendant under any rulings or instructions legally and properly applicable to the case; for the reason that the account manifestly was not barred at the time of bringing the suit. (Hall v. Hodge, 2 Tex. R. 323.)

It is only necessary to add that the Court did not err in instructing the jury that they might look to the accounts attached to and identified by the depositions of the witnesses. The reading over of the items of the accounts at the bar in the hearing of the jury, could have been of very little service in order to their due understanding and computation. This required examination by the jury in their retirement. And though counsel may have omitted to read them, they were not the less properly in evidence by the reading of the depositions, to which they were attached and of which they formed a part. It was not even necessary that they should have been exhibited to the view of the jury in the box. When the objection was raised in argument, (as it is probable the attention of the Court and counsel for the plaintiff was then first called to the fact that they had not been read,) the Court, in its discretion, if that had been necessary, might then have caused them to be read by counsel in the hearing of the jury. But so useless a consumption of time might be very properly dispensed with. We see no error in the judgment, and it is affirmed.

Judgment affirmed.