Bemis v. Charles

Wilde, J.

At the trial of this cause in the court of common pleas, an objection was made to the competency of a witness offered by the plaintiff, on the ground that the witness had, jointly with the plaintiff, furnished the lumber sued for. The witness thereupon executed a release of all interest in the lumber, and was then permitted to testify. It is still objected that he was interested in the event of the suit, as he would be liable for contribution for costs, in case the defendant should recover judgment. But this ground of objection is removed by the release. The witness, after giving the release, had no longer any interest in the subject matter of the action. He could claim no part of the damages, if the plaintiff should recover, nor would he be liable to contribution for costs, if the defendant should recover. The action is not prosecuted for his benefit, but solely for the benefit of the plaintiff.

The defendant’s counsel object also to the admission of parol evidence to prove the contents of a bill of lumber in his possession, because there had been no sufficient notice to him to produce it. The notice does not describe the bill with perfect accuracy ; but we think it impossible for the defendant to have doubted as to what bill of lumber was intended. It does not appear, nor is it suggested, that there is any other bill of lumber in which the plaintiff has any interest, excepting the one the contents of which were proved at the trial. We think therefore that the notice was sufficient, and that the parol testimony was rightly admitted.

The last and principal exception, on which the defendant relies, relates to the instructions of the court to the jury. They were instructed, that upon the facts proved, the lumber sued for could not be regarded as delivered in payment of the defendant’s account against the plaintiff: That the agreement to make such application of the lumber on settlement being executory, and the defendant having refused to allow such application, the plaintiff might maintain this action.

These instructions we think are fully sustained by the evidence. The agreement was certainly executory, and was to be execute 1 on the settlement of the accounts between the parties. No such settlement has ever been made, and the defendant refused to allow the lumber to be applied to the reduction of his demand against the plaintiff. The price of the lumber was not agreed upon. This was left to be ascertained at the settlement. These circumstances clearly prove that the agreement under which the lumber was delivered was executory, and that the execution of it has been prevented by the defendant. It cannot therefore be set up by him in bar of the plaintiff’s claim. That agreement must now be considered as waived by both parties, and consequently the plaintiff may well maintain his action on an implied assumpsit.

Exceptions overruled.