Jackman v. Inman

137 Wis. 30 | Wis. | 1908

Siebeckee, J.

Upon the trial tbe defendant produced a note and testified that it was in bis bandwriting, including tbe indorsements thereon, except tbe printed words and tbe words “Paid in full with int.” written across its face, wbicb words be states were not on it when be parted with possession of it. He also states that it was drawn about Uovember 18, 1901. He was also permitted to testify in response to a •question as to whether or not be knew what tbe words “Old note lost if found canceled by this note” referred to, and stated: “A. It refers to a lost note. Q. To what lost note? A. It refers to tbe note that they are bringing suit on.” Defendant also produced a receipt for one year’s interest on a note, signed by tbe deceased and dated Uovember 18, 1901, and testified that it referred to interest on tbe note sued on. This evidence was duly objected to by appellant as incompetent under sec. 4069, Stats. (1898), for tbe reason that defendant was testifying to a transaction with tbe deceased concerning wbicb tbe plaintiff bad offered no evidence. It is clear that this evidence pertained to a personal transaction between the defendant and the deceased. The decedent during his lifetime would have been a competent witness to refute defendant’s statements he thus makes, to the effect that these indorsements refer to the note in suit and that the receipt covered interest on such note. This evidence being within the prohibition of sec. 4069, Stats. (1898'), was erroneously admitted over plaintiff’s objection. The obvious purpose and effect of it is to show that defendant paid the note sued on by the giving of his note dated November 18, 1901 (Exhibit 1), and which he now produces and claims to have paid the deceased in his lifetime. This is adverse to plaintiff’s claim that the note sued on has not been paid. Stewart v. Stewart, 41 Wis. 624; Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jackman v. Inman, 134 Wis. 297, 114 N. W. 489.

By the Gowrt. — Judgment reversed, and the cause remanded for a new trial.