33 Me. 542 | Me. | 1852
—The first question presented for decision is, whether the testimony of Joseph W. Leland, a Avitness, for the defendant, was properly admitted.
The witness stated, that he, as the attorney of the defendant, called upon the plaintiff “for the purpose of arranging and settling three distinct matters.”
He did not state, that the plaintiff offered to receive any particular sum as a compromise, although he did state, that the plaintiff named the amount due to him. Nor did he state, that the conversation was confidential, or entered upon with
The conversation as related by the witness does not appear to have been commenced for the purpose of endeavoring to make a compromise of disputed claims, or that an offer or offers might be made to purchase peace, but for the purpose of ascertaining the claims really existing and justly due from one party to the other, that they might be fairly adjusted. The conversation as related could not have been excluded by any well established rule of evidence.
The next question arises from the exclusion of John F. Scamman as a witness for the plaintiff. He could only be excluded upon proof made by the plaintiff’s declarations, that he was interested in the event of the suit.
Those declarations prove, that Scamman alleged, that he ought to be paid out of the proceeds of the estates conveyed to the plaintiff, and by him sold through the agency of the defendant’s intestate, certain sums paid by him on account of that intestate ; that the plaintiff insisted upon having Scam-man’s claim adjusted, if a settlement was effected; and that he said, he supposed he should have to commence a suit for the benefit of Scamman.
This suit had not then been commenced. No declaration of the plaintiff was made, or could be made, that this suit was commenced for the benefit of Scamman. There is no proof that it is prosecuted for his benefit, or that he has any interest in it.
It appears that Scamman commenced a suit against the plaintiff to enforce his claim, before the plaintiff commenced this suit. While there is proof by the plaintiff’s declarations, that Scamman claimed to be remunerated from the proceeds of the sales of the real estate sought to be recovered in this suit, and that he professed to have an interest in them, there is no satisfactory proof that he is actually asserting that claim by this suit in the name of the plaintiff.
If the plaintiff should recover those proceeds in this action,, it does not appear that Scamman’s claim to any portion of
It may be, that Scamman is so situated, that he may appear desirous of having the plaintiff recover, hoping that it may induce him to be more favorable to the allowance of his claim; if so, it may affect his credit, while it does not show, that he is legally interested in the event of the suit. His testimony should have been received.
The case is to stand for trial.