Butz v. Schwartz

Mr. Chief Justice Scholfield

delivered the opinion of the Court:

We entirely concur in the rulings of the courts below, and we deem it unnecessary to modify or add to anything said by Mr. Justice Wall in the foregoing opinion, except in respect to the ground upon which it was competent for appellee to testify in regard to the same matters of fact testified to by Jennings and Hughes.

The third exception of section 2, chapter 51, of the Revised Statutes of 1874, reads: “Where, in any such action, suit or proceeding, any such party suing or defending, .as aforesaid, or any person having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite-party or party in interest shall also be permitted to testify as-to the same conversation or transaction.” At the time of the-enactment of this exception, the words, “person having a di.rect interest in the event of such action, suit or proceeding,” had a well known meaning in the law of evidence, and it is therefore to be presumed that they are here used to express that meaning. The rule was, where the event of the suit, if adverse to the party adducing the witness, would render the latter liable either to a third person or to the party himself, there was a direct interest on the part of the witness in the ■event of the suit, and this without regard to whether the liability arose from an express or an implied legal obligation to indemnify. (1 Greenleaf on Evidence, sec. 393.) And so it was held, where the cause depended upon the question whether the agent had been guilty of some tortious act or some negli.gence in the course of executing the orders of his principal, .and in respect of which he would be liable over to the prin•cipal, if the latter should fail in the action pending against him, the agent was not a competent witness. 2 Greenleaf on Evidence, sec. 417; Bruner et al. v. Battell, Exr. 83 Ill. 317, and authorities there cited.

The payees of the note are liable to the assignee on an implied warranty of the title and genuineness of the note. (Drennan v. Bunn, 124 Ill. 175.) If the signature of appellee ~to the note was obtained by fraud and circumvention, or if it was a forgery, the payees are liable over to the assignee, and that fraud and circumvention, or forgery, being the work ■of Jennings and Hughes, they are liable for the injury thereby occasioned to the payees of the note, and being witnesses and testifying in this case, the judgment against appellant will he conclusive against them, (Drennan v. Bunn, supra,) and so they are “persons having a direct interest in the event of the suit,” within the meaning of the language of exception 3, section 2, supra.

The judgment is affirmed.

Judgment affirmed.