Bank of Missouri v. Hull

7 Mo. 273 | Mo. | 1841

Opinion of the Court by

Napton, Judge.

The plaintiff in error sued William C. and Josephs. Hull, in assumpsit, to recover the amount of three promissory notes made by Savage & Austin, and endorsed by defendants. On the trial of the cause, the defendant proposed to swear William J. Austin, one of the firm of Savage & Austin, makers of the notes. To the introduction of this witness objections were made on the ground of incompetency, but the objections were overruled by the court, and the witness testified. From his testimony it appeared that the notes in question were drawn by Savage & Austin, and endorsed by W. 0. Hull, for their accommodation merely. The testimony of this witness, together with other evidence, conduced to prove that the endorsement was made by W. 0. Hull, without any authority to bind his copartner, Joseph S. Hull.

In suits on negotiable party to' the ¡nstruRient may be per* mitted to not fied by est. kerof a note is, therefore, a competent witness for an action by" he endorsee a-dorser,1 Uio” maker Imvmg that suit, wfbe'i^evenu el”.8 is not ovei^if’he'is an aooommo-daüon ondor-ser, in winch gardod°asa1'0" surety, and if nuBceeds ' ¡•gainst him, he js entitled to recover of onljTtheam’t of the note, he hasbeenStS compelled to pay. Unless, therefore, the maker is released from this liability he is incompetent.

The verdict was for the defendant.

The only material question -arising on this record is the competency of W. J. Austin, as a witness for the defendant. The principle established in Walton v. Shelly (1 T.R.296) that upon reasons of public policy, apart from the question interest, a party to a negotiable instrument shall not be in-permitted to impeach it, has never been adopted by this court. In a majority of the States the later English adjudications on this point have been followed, though in a few 1 CJ the rule in Walton v, Shelly is still adhered to. The received opinion, both in England and Ibis country, to be, that in negotiable instruments a party to the . . j . 4 -r I • . Y r instrument may he permitted to testily if he is not disquali-f!ec{ |,,, ¡merest. The maker of a note is therefore acompe-J 1 tent witness -for an endorser in an action by the endorsee agaMst him, because lie has no interest in that suit, being liable in either event. 4 Taunt, 464. This is not the case, however, if he is an accommodation endorser,in which case j he ]aw regards him as a surety, and if the endorsee sue-against him he is entitled to recover of the maker not on,ty amount of the note, but the costs he has been corn-pelted to pay. This liability for costs disqualifies him. Hubby v. Brown, 16 John. R. 70. The court of common pleas no-t err ¡n admitting Austin to testify. He was a com- ° * petent witness when the objection was made. When the w’tnesR disclosed his own incompetency, it was the duty of the plaintiff’to object to his testimony, aud save his exceptions, if his motion was overruled. Having failed to do so, he cpnn0¡; after verdict claim a new trial because of incompetent evidence to which he made no objection on the trial. ^ objections had been made in time, the party may have had it jn his power to prove the same fact by other witnesses.— Wright v. Sharp, 1 Salk. 288. Judgment affirmed.