Nalle v. Gates , 20 Tex. 315 ( 1857 )

Wheeler, J.

It does not appear, otherwise than by the averment in the petition, that the suit was for the use of Nalle; that his co-plaintiff was but a nominal party. That averment was traversed specially by the answer; and there is no evidence of an assignment of the note, or of the interest of the one payee, to the other. This distinguishes the present from the cases which hold that the declaration of the former holder of a chose in action, shall not be received to impeach the title or impair the interest of his innocent assignee in a’suit by the latter. (Bristol v. Dan, 22 Wend. 142 ; Whitacre v. Brown, 8 Id. 490; Frear v. Evertson, 20 Johns. R. 142; 1 Greenl. Ev. Sec. 171.)

The rule is well settled, that a party who can call a witness, should not be permitted to prove his declarations. But it was not the privilege of the defendant to make the alleged nominal plaintiff a witness; because he was a party to the record, and might refuse to testify if he saw proper; (Dial v. Crain, 10 Tex. B. 444; Parsons v. Phipps, 4 Id. 341;) and although only a nominal party, the consent of the real party in interest, it seems, must have been obtained before he could be examined. (Frear v. Evertson, 20 Johns. R. 142, 143; 1 Greenl. Ev. Sec. 353, 354.) Not being a competent witness at the call of the defendant, being a party to the record, and apparently having a joint interest with his co-plaintiff in the note on which they sue, it is not perceived that there was error in admitting his declarations in evidence. (1 Greenl. Ev. Sec. 171; 7 T. R. 663, 670, note; 8 Wend. 491.)

It is further insisted that the evidence was not admissible, because variant from the allegations in the answer. The answer sets up an account against one of the plaintiffs. The account itself is not in the record; but for aught that appears it may have been charged against the plaintiff. Under the understanding of the parties, as deposed to by the witness, it might have been so charged. We cannot say, therefore, that the evidence was inadmissible on this ground.

Nor do we think the remaining objection to the judgment well taken. Objections to the admissibility of evidence cannot be raised by asking instructions to the jury. If the evidence was inadmissible as tending to vary by parol the terms of a written contract, it should have been objected to on that ground when offered. That, however, was not one of the grounds of objection taken to the admission of the evidence. But if it had been we do not think it well taken. It is evident the note had been made before the conversation detailed by the witness. The proposition to place the credit on the note plainly implies that the note had already been made. There was no error in refusing the charge asked by the plaintiff. Nor was there error in the charge given at the instance of the defendant. The transaction amounted to an equitable payment; and the speaking of it as a payment could not have had the effect to mislead. There could be no mistake as to what was intended. There is no error in the judgment, and it is affirmed.

Judgment affirmed.