Kottwitz v. Bagby

16 Tex. 656 | Tex. | 1856

Wheeler, J.

There was no error in overruling the objection taken to the deposition. Objections to depositions are either to. the form and manner of taking them, or to the matter of the depositions. The present evidently was an objection of the former kind ; and was rightly overruled, because not taken in the time and manner prescribed by the statute.— (Hart. Dig. Art. 783.) But if it had been taken in time, the objection was not tenable. The interrogatories and notice served upon the defendant sufficiently apprised him, that the depositions were intended to be used upon the trial of a suit then instituted against him; and there was nothing to prevent his propounding cross-interrogatories to the witnesses, if he chose to do so ; though the citation had not been served upon him.

The ruling of the Court admitting the testimony of the witness Morrill, is not assigned as error ; and it is, at least, questionable, whether the assignment of errors can be held to embrace the ruling upon the admissibility of the testimony of the witness Russell. The assignment is, that “ The Court erred in overruling defendant’s objection to the deposition of witness Bagby et al.” This evidently has reference to the objection to the deposition we have already noticed ; that is, the objection to the manner of taking the deposition of the witnesses Bagby and others ; and not to the objection, appearing by the bill of exceptions, as having been taken to the matter of the deposition of the witness Russell. It might be held, therefore, that the propriety of the ruling of the Court upon the admissibility of the testimony of the witness, is not before us for revision by the assingment of errors.

But supposing the question of the admissibility of the evidence properly presented for revision, it remains to inquire , whether the evidence was admissible, and sufficient to warrant the verdict. And if, to entitle the plaintiff to a recovery, it were necessary to prove the notes to have been counterfeit or forged, it is perfectly clear that the evidence was not competent for that purpose. The witness does not profess to speak of his own knowledge as to the character of the bills, but only as to what was said by others, brokers and merchants, in New Orleans, to whom he exhibited the bills. If it was proposed to prove by the testimony of those persona that the bills were counterfeit, their depositions should have been taken. Their acquaintance with the signatures of the officers of the Bank, or with its paper, may havé been such as to render them competent witnesses to depose to the fact. (Cowen and H. Notes to Phil. Ev. Part 2, n. 258.) But their declarations to the witness, that the bills were counterfeit, were mere hearsay, and could not be received as competent evidence to prove that they were in fact counterfeit. But we are of opinion that, to entitle the plaintiff to recover in this action, it was not necessary to make that proof. The plaintiff's case was, substantially this, that by the mutual understanding of the parties these notes were passed by defendant to the plaintiff and received as so much money. In the payment and receipt of them, there was an implied contract on the part of the defendant, that they were current and would pass readily in mercantile and business transactions, as money. But, in fact, they were not current, or available to the plaintiff as money, but were worthless. If the evidence was admissible and sufficient to prove such a state of case, we think the plaintiff was entitled to recover.— Anri we are of opinion that it was. There is no doubt the bills in question were passed by the defendant to the plaintiff, and received by the latter as money ; and that it turned out that they were, in fact, uncurrent and worthless ; at least, it is clear that they did not and would not answer the purpose intended, and which the defendant impliedly contracted they should answer ; and this, when they were brought into Court, subject to be restored to the defendant, was sufficient to entitle the plaintiff to recover. To require the plaintiff, in such a case, to produce evidence sufficient to convict of passing counterfeit money, or of forgery, would be throwing too great a burden upon him ; especially considering the difficulty of making such proof, in a State where there are no banks, and the people are not supposed to be very conversant with bank paper. There is no danger to be apprehended from the dispensing with such proof: for there is not any reason to apprehend that any one who may have received the genuine bills of a solvent bank will ever return them to the hands of the person from whom he received them, for the purpose of taking the chances of a recovery in a civil action.

It is averred, not only that the bills were worthless and the plaintiff was unable to realize anything from them, but also that they are counterfeit. By this averment the pleader took upon himself an unnecessary burden of proof: and under the common law pleadings and practice, the consequence perhaps would be that, failing to make the corresponding proof, he would fail in his action ; such being the consequence of needlessly averring what the party could not prove. But with us the practice has been different. The proof must meet and ■conform to the material and essential averments in the pleadings ; but if the pleadings contain averments which are not material and essential, these, unless they occasion repugnancy or inconsistency, may be treated as mere surplusage, which does not vitiate on demurrer, or defeat a recovery on proof of the essential allegations of the party, though the matter unnecessarily averred be not proved.

It is objected to the sufficiency of the evidence, that the proof fails to identify the bills as the same which were received from the defendant, in that, the witness Bagby says he received the bills for the plaintiff, and the witness DeLahunty states that the money was paid to him for the house of Russell by the plaintiff. But the witness Bagby states positively that the money paid to the house of Russell was the same which he received from the defendant for the plaintiff. He is not interrogated as to his means of information. It is not difficult to conceive that he might know the fact, though the money was not handed to DeLahunty by himself, but by the plaintiff. He may have been present and witnessed the delivery of the package. It may have been, up to that time, in his possession.— Where an unimpeached witness states a fact as of his own knowledge, it must be taken that he had competent means of information and knowledge of the fact, unless the contrary appears.

Though the evidence, as we have seen, was not competent to prove that the notes were counterfeit, it certainly was competent to prove that they were not current or available to the plaintiff as money. If, when presented to the brokers and merchants of New Orleans, they pronounced them counterfeit, that is sufficient to warrant the conclusion that they were not current bills, and would not answer the purpose intended, and which the defendant had impliedly contracted that they should answer. The declarations of business men to whom they were presented, was competent evidence to prove that they would not pass as money. In fine, there can be no doubt, we think, that the bills were passed by the defendant to the plaintiff as money ; and that it turned out that they were, in fact, worthless, or, at least, of no value to the plaintiff. The defendant, therefore, was bound to supply their place with money, or its equivalent. And, upon the whole, we are opinion, that the petition contained matter sufficient to maintain the action, rejecting the allegation that the notes were counterfeit; that the material, essential averments were sustained by the proof; consequently that the verdict was warranted by the evidence. The judgment is therefore affirmed.

Judgment affirmed.