58 Iowa 321 | Iowa | 1882
If James M. Bean was a party to the action, within the meaning of the statute, section 3639 of the Code, his deposition was improperly admitted.. That he was technically a party cannot be denied. But after the filing of the stipulation referred to, his rights were virtually concluded. It is true, judgmentdoesnot appear to have been rendered against him as the stipulation provided, but it could have been rendered. After
III. The defendant read in evidence portions of the testimony of the plaintiff’s intestate, as his admissions, given upon a former trial. The plaintiff then offered the remainder of the testimony of his intestate. The court admitted only a portion of the remainder. The plaintiff claims that the court erred in not admitting the whole.
Section 3650 of the Code, provides that when part of an act, declaration, conversation, or writing, is given in evidence by one party, the whole on the same subject may be inquired into by the other party. But we are unable to see that the testimony excluded, would, if it had been admitted, have had any tendency to explain or modify the part introduced. It could not, we think, be said to be upon the same subject.
In our opinion it was not necessary for Patterson to show that he was induced to sign the note by fraudulent representations. It was sufficient, we think, if the intestate, at the time he obtained Patterson’s signature, acted in bad faith in concealing from him what he was entitled to know, and what if he had known, would probably have prevented him from signing the note. We see no error in the ruling of the court upon this point.
The court refused the instruction and gave an instanction in these words: “The liability of the defendant, Charles C. Bean, depends upon the simple question of fact as to whether,' or not, the signature of James Patterson was obtained to said note without the knowledge and consent of said Charles C. Bean; and if you find by a preponderance of credible testimony that the signature of Patterson was' obtained without the knowledge ■ and consent of Charles C. Bean, then said Bean is not liable; but if- the evidence fails to establish said alleged fact, then said Charles C. Bean is liable for the amount due on the note.”
The plaintiff insists that the instruction asked by him is not fully covered by the instruction, given. He insists that he was entitled to have the attention of the jury called specifically to the fact that, if Charles C. had knowledge that Patterson was to sign the note and did not object, he must be deemed to have consented to Patterson’s signing it. Possibly, we might conclude that the plaintiff’s position is correct, if there was any evidence that Charles C. had knowledge that Patterson was to sign the note.
The evidence relied upon by the plaintiff, is a portion of the intestate’s testimony, given upon a former trial, and which was to the effect that he told Charles C. that Patterson was to sign the note, and that Charles C, did not object. That portion of the intestate’s testimony upon the former trial was read in evidence by the plaintiff, against the defendant’s objection, upon the trial from the rulings in which the appeal was taken.
The defendants had, as they were entitled to do, read certain portions of the intestate’s testimony as his admissions. The admissions, as claimed by the defendants, were to the effect that the intestate, when he obtained Patterson’s signature, did not inform him that the principal, Bean, had declined to give a note with him as surety.
Now, it is very clear that we have no evidence of what the intestate told Charles C., if anything. What was admitted only purports to be evidence of what the intestate testified to upon the former trial. As evidence of the fact sought to be established it was inadmissible. As evidence of such fact it was not admitted. The instruction asked then was based upon evidence which in no proper sense was in the case. It was, we think, properly refused.
Affirmed.