Groat v. Palmer , 7 Wis. 338 ( 1859 )

By the Court,

Smith, J.

The only ’question arising upon the record in this case, is upon the ruling of the judge on the trial below in rejecting the evidence offered to be proved by Sproat called as a witness by his co-defendant Palmer.

Section 299 of the code of procedure provides as follows ' “ A party may be examined on behalf of his co-plaintiff or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate, and not a joint judgment can be rendered.”

The proper determination of this question requires a construction of this provision of the code. Upon a corresponding provision in the code of New York, much controversy has been had, and a contrariety of opinion has obtained.

A similar provision in the New York code, owing to the different constructions put upon it, was amended from time to time, until at last it assumed the shape which has been literally copied into our code, as above cited.

It is hardly worth while to go over the various decisions made upon it, at different times, for it can hardly be said that the proper construction is yet permanently settled in New York. See 8 Barb. S. C. R., 655, 10 id. 390, 5 How. Pr. R. 296, 4 Sanf. 616, 10 Barb., 112, 5 How. 407, 1 Kernan 128, 141, 3 id. 266.

In Beal vs. Finch et al., 1 Kernan, 128, Mr. Justice Parker, held, that in an action for tort, such as assault and battery, “ A party may be examined by his co-defendant, as to any matter as to which a separate, and not joint verdict or judgment can be rendered, and as to any matter in which he is not jointly interested or liable with such co-defendant.” That case also decided, that a co-defendant in an action for tort was a competent witness to be called and sworn by his co-defendant in all cases, the only question being as to what matters his testimony was admissable in.

In Dean vs. Thornton, 3 Kernan 266, it was held that in an action of tresspass against two for cutting timber, it was alleged that one of the defendants purchased the timber of the plaintiff and employed the other to aid in carrying it away, and it was held, that neither of the defendants was a competent witness for the other to prove the purchase of the timber. I am not aware of any decision in New York of a later date than this, which bears upon the subject.

I do not understand that the objection in this case went to the competency of Sproat to be sworn, but only as to his competency to prove the particular matters offered in evidence through him, by his co-defendant Palmer.

It is not surprising that legal minds become perplexed in attempting to construe an enactment which at once sweeps away qualifications and conditions which we have been in the habit of regarding as the strongest and surest safeguards to the purity of human testimony, in its application to the administration of justice. But it becomes our duty to make our best efforts to ascertain and carry out the objects sought to be attained, and in the manner prescribed by the law. This provision of the code permits a party to be examined in behalf of his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested, or as to which a separate and not a joint verdict or judgment may he rendered.

The cause of action in this case was upon a joint (not a joint and several) promissory note, and although one of the defendants pleaded a separate release to himself, and the other that the note was without consideration, it cannot be denied that the contract sued upon, the cause of action set out in the plaintiff’s complaint is one in which both the defendants are jointly interested, and is one in which a joint judgment can be rendered. Now I am not aware that any decision in New York has gone so far as to permit co-defendants upon a joint contract to be witnesses for each other, for any purpose. If one defendant upon a joint note could prove a separate de-fence for his co-defendant, we might have the extraordinary spectacle of one defendant pleading accord and satisfaction as to himself, and calling upon his co-defendant to prove it, and the other, some other alleged defence peculiar to him self, and making a like call upon his co-defendant. It is not to be presumed that the code is liable to such an absurdity. There are many cases arising out of, or sounding in contract, where under the code now, as in equity jurisprudence formerly, defendants, having different interests, may be made parties, and as to whom separate judgments can be, and ought to be rendered. Where these interests and liabilities are entirely distinct, defendants may be witnesses for each other, as was formerly the case in equity proceedings. But is it possible that under this provision of the code, it was intended that two joint endorsers of a promissory note, might put in a separate defence to a joint action, each to be used as a witness on call, to prove the defence of the other ? We are not prepared to accede to such an interpretation of the statute.

The defendant, Palmer, on the trial below, proposed to prove by his co-defendant, Sproat, that he, Palmer, was discharged from the note in question by Jones, at the time of the sale of his interest in the goods to Jones, and that Sproat assumed the payment of the whole note. The court rejected the offers and we think properly. The same principles of public policy which would prevent Sproat from being a witness to invalidate the note as against the other joint maker, remain unimpaired since, as before the adoption of the code. Such a rule would allow one of the joint makers of a note, who had become insolvent, to swear to a release, or satisfaction as to the other joint maker who was solvent, and the chief value of such contracts as commercial paper, be destroyed. Admitting that the statute allows a release of one of the makers, without discharging the other, we think that it must be shown in some other way, notwithstanding. (See 299 of the code.) Nor do we think that chapter 381 of the session laws of 1851 applies to this case. That statute was not intended to change a joint contract into a several one. It only allows a creditor to release one of several joint debtors from the amount which by the contract the person so released was in equity bound to pay. But it did not authorize the conversion by parol, of a joint promissory note into a several note, obligatory upon one of the makers only, for the whole amount The plea of the defendant Palmer was not in view of the act of 1851. He does not set up that he had paid to the holder of the note the amount for which he was originally in equity bound to pay, but he sets up a new agreement, by which he, for a new consideration, (not the amount which he was in equity bound to pay) was discharged, which he offers to prove by Sproat, and also that Sproat assumed the payment of the whole. That is, that for a valuable consideration Jones had released him from his part of the note, and Sproat had assumed the part released and become solely bound for the whole. And he offers to prove by Sproat that Palmer had satisfied Jones for his part, leaving Sproat only liable for that portion which by the terms of the contract was equitably due from him, yet he had assumed the payment of the whole, notwithstanding his answer of record that there was no consideration for the note.

Although the act of 1851 may authorize the release of one joint maker of a contract, by the payment of the amount for which he is equitably liable, it does not authorize the admission of parol evidence to vary the terms of a written contract. The evidence offered, proposed in effect to do this, and the judge rightly rejected it.

Judgment affirmed with costs.