89 Ky. 105 | Ky. Ct. App. | 1883
delivered the opinion op the court.
Davenport, who was the guardian of young Trout-man, became insolvent, resigned his trust, and Wither-spoon having been appointed guardian in his stead, brought his action against • Davenport and his surety (or the executors of his surety) on the guardian’s bond to recover the amount for which Davenport was liable. The executors of Alexander (the surety) paid off the amount due the ward of Davenport, and are now seeking to subject certain moneys owing Davenport by 0. P. Alford & Co. to indemnify them, on the ground that it is money belonging to the ward, and which was loaned them as a part of the trust fund. They seek to be substituted to the rights of the ward, having paid off the debt. Alford & Co. say they have a claim against Davenport for a much larger sum than the amount they are owing him, and have pleaded it as a set-off. The note executed to Davenport by Alford & Co. was made payable to him in his own right, and not as guardian, and the dealings between Alford & Co. and Davenport conducted as if the money belonged to Davenport, and not to his ward. The member of the firm to whom Davenport loaned the money is dead, and the real party to the transaction, Davenport, to whom the note is made payable, is introduced as a witness, to show that the firm, through the deceased member borrowing the money, knew that it was the money of the ward, and borrowed it as such.
Subsection 2 of section 606, Civil Code, contains the following provision: “No person shall testify for himself concerning any verbal statement of, or any trans
Subsection 9 provides: “The assignment of a claim by a person who is incompetent to testify for himself shall not make him competent to testify for another.”
The entire transaction was had in this case with the deceased partner, and the testimony of Davenport alone conduces to establish knowledge, on the part of the deceased partner, that the money borrowed belonged to the ward. The subsequent transactions between the firm of Alford & Co. and Davenport show an individual liability on the part of the latter for a much larger sum than the firm is owing him by reason of the note in controversy. The testimony of Davenport defeats the right of the appellee, as surviving partner, to plead the claim as a set-off to the note, and changes the legal effect of the obligation. It is argued, however, that there is no controversy between the surviving partner and Davenport, but an issue as to whether the money due, evidenced by the note, is the money of the ward or that of Davenport, to whom the note was executed. There is more in the issue than the mere question as to whom this money actually belonged at the time it was loaned. The effect of the testimony of Davenport is to show knowledge on the part of the firm, and to change the character of the obligation by making the firm pay to one with whom they never contracted, and at the same time deprive them of the right to set off the amount owing them by Davenport against this note. The interest of the witness may be in equipoise, or he may be testifying against his interest, still his testimony affects the rights of those who are
In the case of Lawhorn v. Carter, reported in 11 Bush, 7, it was held that an opposing party is not a competent witness to prove what took place between himself and a deceased partner in the absence of the surviving partner. There is no proof that the surviving partner was present, or knew the nature of the borrowing, otherwise than as shown by the note; and as Davenport was not a competent witness if he had sued in his own name, and could not make himself competent by assigning it, the chancellor, under no rule of law or equity, would undertake to substitute the appellants to his rights, or those of' his ward, in order that he might speak of the transaction between himself and the dead. Nor will the chancellor take hold of slight circumstances in this case, evidencing knowledge on the part of the firm, for the purpose of making them lose the debt, instead of the sureties in the guardian’s bond. The loss must fall on either the surety or the appellees, and as the note does not evidence any liability to the ward, and the proof showing transactions between Davenport and the appellees, by which a mutual indebtedness exists, there would be no equity in taking the money from the appellees, under such circumstances, and applying it to-what Davenport owes the executors, or to substitute them to the rights of the ward. The money borrowed was without ear
The relief sought was properly denied, and the judgment is affirmed. (See Hobbs’ Ex’r v. Russell’s Ex’r, 79 Ky., 61, deciding the same question.)