Bradshaw v. CombsBradshaw v. Combs
- Reporters:
- ,
- Before:
- Dickey
delivered the opinion of the Court:
Counsel for plaintiff in error contends that under our statute Miller, being a party to this suit, could not properly be allowed to testify for Combs upon this point, because thе fact sworn to occurred before the death of Mrs. Morrison. He relies upоn the provisions of the act of 1867 as to the competency of witnesses, whiсh is now, with some additions and modifications not affecting this question, incorporatеd in the first eight sections of chapter 51 in the Revised Statutes of 1874, entitled “Evidence аnd Depositions.” Before the passage of that act, by the rules and usages оf courts of chancery one defendant was held competent to testify in behalf of a co-defendant on any question in the decision of which he had no interest. The passage of that statute has in no manner impaired that rule. The first section (Rev. Stat. 1874, p. 488,) abolishes all disqualifications of a witness by reason of interest, as a party or otherwise, except as thereafter stated in the act. The qualifications thereafter-found are mere limitations upon the effect оf that act in rendering witnesses competent in cases wherein they had been incompetent. Nothing in the act contained indicates an intention to render any witness incompetent in any case where, in the absence of the statute, hе was, and had been, competent. We think Miller was properly held a competent witness.
It is also contended that parol evidence of the contract charged was rendered incompetent by a writing found upon the note. The note has indorsed upon it the following: “It is agreed by the parties to this note that the interest shall be at the rate of ten per cent until paid. ” This writing is signed by George A. Miller, the рrincipal debtor, and bears date July 13, 1870. The testimony of Miller is, that at the time when this memоrandum was signed by him it was agreed ‘between himself and Brown, the agent of Mrs. Morrison, that the timе of payment should be extended one year, and that this promise to pay ten per cent was made in consideration that the creditor agreed to forbear for one year. It is insisted that to receive this oral testimony is to vary the terms of a written agreement by parol proof of what was said at the making therеof, which the law forbids. We think not.- Had the parol proof offered been that the new rate of interest was to be nine per cent instead of ten, the rule in question would hake applied. Where parties reduce them agreement to writing thеy can not be allowed to vary its terms by parol; but where it is evident that the agreеment is not reduced to writing, but only a part of it, and where that part reduced to writing is mеrely a partial execution of a part of an entire agreement between the parties, the whole agreement may be’ proven. A man may buy a horse at $100, and agree to give his note, at one year, for $80 of the price, аnd to do labor at a given rate to the amount of $20, in payment for the horse. In such case the fact that he gives his note for the $80, and no other writing is made excеpt the note, does not preclude the vendor of the horse from proving thе promise to do the labor, nor would such fact prevent the purchaser оf the‘horse from proving the contract of sale, so as -to sustain his title to the hоrse. The case at bar is of that class of cases presented by this illustration. Thеre was no valid objection to the proof on this ground.
Complaint is made that lеading questions, and answers thereto, were permitted, and especially in the examination of Brown. After a careful examination of this suggestion we think no wrong was done. Brown was plainly a reluctant or unwilling witness. In such cases the purposes of truth and justice do not demand a strict and literal adherence to the general rulе on the subject.
We think the proofs fully sustain the decree, and that the appropriate remedy for the relief of Combs, as surety, has been pursued in this case. High on Injunctions, (2d ed.) secs. 1375, 1376; Story’s Eq. Jur. secs. 324, 325.
Finding no error in the record, the judgment of the Appellate Court is affirmed.
Judgment affirmed.