Black v. Campbell , 6 W. Va. 51 ( 1873 )

Moore, Judge :

The Appellant assigns two errors.

1st, The exclusion of LeAvis Campbell’s deposition upon the ground of interest.

2d. The addition to the instructions asked for by the Defendant, and the instruction voluntarily given by the Court, Avere erroneous.

What Lewis Campbell’s deposition was, does not appear, nor is it material, as the objection was not to what he testified to, but to his competency as a witness. It appears, from tire statement in the second bill of exceptions, that Lewis Campbell was a member of the firm of Isaac Campbell & Co.; that Isaac Campbell, in his lifetime, signed the firm name of Isaac Campbell & Co. to the bond ; that the estate of said Isaac Campbell was insolvent, and that said Lewis Campbell was, at the time of the trial, non-resident of the State; that the Defendant, when he offered the deposition, produced a release, from himself, to said Lewis Campbell, in the following words: “Desiring to take the deposition of Lewis Campbell, to be read as evidence upon the trial of this cause, to that end I hereby release said Lewis Campbell from all costs which may be recovered against me in said suit, and from all costs which I may expend in defending the same. The suit is depending in the Circuit Court of Monroe County, West Virginia. Witness my hand and seal this 13th day of October, 1866.

ANDREW CAMPBELL. [seal.]

Atieste : Cha ules It. Cajípbell.

The Plaintiff objected to the admission of the deposition, and the Court sustained the objection and excluded the deposition, “upon the ground that the said Lewis Campbell was an interested witness, liable in equity at least, if not in law, for his proportion of the bond in controversy (which bond it was proved was given for money loaned by Plaintiff to the said firm of Isaac 'Campbell & Co.), and that Defendant’s release of all claim on this behalf against said Lewis Campbell did not remove the objection to his competency.”

The Defendant excepted to the ruling of the Court.

Whether Andrcw^Campbcll was liable, or not, on the bond, is not a question before this Court.

Was Lewis Campbell’s interest, in the cause, such as would render him incompetent as a witness?

Judge Roane, in Baring vs. Reeder 1. Hen. & Munf. p. 154, said: “It is an established principle, that all persons are competent witnesses, who have either no interest in the canse, or whose interest therein hangs equal between the parties. * * * On this principle, that an interest on one side is counteracted by an equal interest on the other, it is held, that the acceptor of a bill of exchange is a competent witness in an action against the drawer to prove that he had no effects and thereby prevent the necessity of notice to him; for .though by supporting the action against the drawer, he relieves himself from an action at the suit of the holder, he at the same time gives an action against himself, at the suit of the drawer, in which the want of consideration will not avail him, but must be proved by another witness. — Peake’s L. Ev. 154, 2d ed. On this ground it was held, in the case of Ilderton vs. Atkinson, 4 Term Rep. 480, that if A have received money from B, to pay "C, and the question be whether A were the agent of C, 'he (A) may be called as a witness to prove the agency; as in any event- he stood indifferent between the parties, being either liable to fay the money to the Plaintiff, or refund it to the Defendant.”

In the same case, Judge Roane further stated, that, '“R. Claiborne stood entirely indifferent between the parties. By giving testimony, and procuring a judgment for Baring in this action, he subjected himself to the action of Reeder, founded on the warranty of his bill of sale; by procuring a verdict and judgment 'for Reeder, he laid himself liable to Baring’s action, to recover the value of his goods sold to Reeder.” And ■¿he learned Judge adds: “But, however, Claiborne might be interested in the question contested between the parties in this suit, he is a competent witness, if he is not interested in the event of this cause; or if, being interested on one side, he is equally interested on the other.” And “the rule now seems to be, that the witness is competent, if the proceedings in the cause cannot be used as evidence for him, although he may entertain wishes on the subject, and even have occasion to contest' the same question, in his own case, in a future action.”

I have culled, from the opinion of the learned Judge, what I believe to be the principles established by many authorities since the case of Baring vs. Reeder; and, as it seems to me, conclusive of the question before us, that Lewis Campbell had no such interest in the cause as ivould render him incompetent as a witness.

In the case of Van Deusen et al. vs. Blum et al., 18 Pickering 229, upon a contract under seal, executed by the Plaintiffs, of the one part, and by Blum, for himself and his co-partner, Thonvenin, by signing the company name, “ J. C. Thonvenin & Co.,” and annexing a seal there was no evidence that he had any authority to execute the contract in behalf of Thonvenin, or that Thonvenin was present at the execution or ever ratified it. It ivas held, that Thonvenin ivas not liable on the sealed instrument, but Blum was, and although the Plaintiffs' might have had a remedy upon the contract against him, yet they were not bound to rely upon him alone, as they could proceed against Thonvenin upon their equitable claim for their labor and materials so far as these benefited the company. The same principle, I think, is deducible from Sale vs. Dishman’s Ex’ors., 3 Leigh 548; Weaver vs. Tapscott, 9 Leigh 424; Galt’s Ex’or., vs. Calland’s Ex’or., 7 Leigh, 594.

Upon the principles thus settled, it cannot be said that Lewis Campbell was incompetent as a witness. If he was not liable for the debt, as a member of the firm, at law, nor. in equity, certainly he would be a competent witness. If he was, either at law or in equity, liable as a partner for the money advanced by Black, then certainly he would be liable to Andrew Campbell, if judgment went against him. On the other hand, if Black failed to’ recover against Andrew Campbell, he would have. his remedy against Lewis Campbell, by resorting to bis equitable claim. Therefore, as his interest in the cause hung equally between the parties, he was a competent witness.

As to the second assignment of error, viz: the addition to the instructions asked for by the Defendant, and the instruction voluntarily given by the Court:

The Defendant asked the following instruction: “ If the jury believe from the evidence, that the bond in question was not signed by the Defendant, they must be satisfied that his signature was placed there in his presence and by his authority, or that he afterwards adopted the bond by some act which amounted to a delivery, and that no verbal admission, that he would pay the bond, would amount to such delivery, unless the bond was present at the time, so as to enable him to exercise control of it.”

The Court gave the instruction with this addition: “Or unless the jury should believe from the evidence that the Defendant permitted the said bond to be sent forth, or held out to the Plaintiff, as his, (the Defendant's) deed and .thereby induced the Plaintiff to act upon such representation or assurance, in which case, the Defendant would be estopped from showing that the bond is not his deed, and that he never executed it.”

Although the addendum might have been strengthened by the statement, that the Defendant hiowingly permitted, yet, I think, there can be no reasonable objection to it? even in the lauguage with which it is clothed. If the Defendant permitted the bond to be sent forth, or held out to the Plaintiff the idea that it was his deed, and thereby induced the Plaintiff to change his previous position, and act upon the bond, under the belief that it was the Defendant's deed, certainly the doctrine of estoppel would apply. It seems to me the jury could not have been misled by the, language of the addendum.

As to the voluntary instruction : It is not only vague and contradictory, but is contrary to the rule of law and tends to mislead the jury. If the bond was not the deed of the Defendant, at the time of its delivery, either by his own execution thereof, or ratification if his name was signed by another without authority, it was a forgery, and he should not be held liable under it, by reason of any thing said or done by him after the delivery of the bond to, and acceptance of it by the Plaintiff, not amounting to a delivery by the Defendant; because the Plaintiff, having already acted by accepting the bond, his position would not be altered, as to his rights under that bond, by anything said or done by the Defendant, not amounting to a delivery, thereafter, and especially after the same fell due •” nor could the denial, or repudiation thereof, by the Defendant, under such facts, operate to the injury of the Plaintiff, and consequently, no estoppel is thereby ’Created. The Court erred in giving the voluntary instruction.

The judgment should be reversed, with costs, and a new trial awarded.

Paull and Moore, Judges, concur with Haymoku, President, in the reasons assigned and points decided.