103 So. 682 | Ala. | 1925
Lead Opinion
The suit was to collect interest on a promissory note executed by a married woman and her husband.
The question of fact for the jury was the suretyship vel non of the wife under the statute (Code 1907, § 4497; Code 1923, § 8272) and our decisions (Smith v. Rothschild Co. [Ala. Sup.]
The whole evidence bearing on the issue has been carefully examined, and it is our opinion that the defendant wife did not discharge the burden of proof that rested upon her under the plea of sole surety — to secure a debt entirely that of her husband. Gibson v. Wallace,
It may be noted of the tests under the statute of suretyship of the wife for the husband that in Gibson v. Wallace, supra, the wife owned the farm, live stock, and agricultural implements; "the husband owned nothing, and this fact was known to Wallace," the mortgagee and payee. In Lunsford v. Harrison,
Under the plea of the defendant wife, did Mrs. Jacobs lend the $10,000 to the husband alone, and did the wife sign as surety only for such debt of the husband?
The evidence was in conflict on foregoing issues of fact. The husband testified that the wife only signed as surety, and that he procured, and the loan was made to him. The appellant testified she did not tell Mrs. Jacobs that she was only signing the note as surety for the husband. She declared that this was not discussed. Appellee's version of the contract is thus stated:
"* * * On the 6th of January they (the husband and wife) came one morning tolerable early, and they got out and came in, and we talked awhile; and they commenced talking about me letting them have the money, and I told Mrs. Lester I thought they were going to make me a mortgage for the money, to fix me a mortgage, and she said: 'No, my note is as good as my word, and my word is as good as a mortgage, and I will never sign another mortgage on my land.' So I thought it should be as good, and as I had promised to let them have the money, I would go on and let them have it, thinking it would be all right. I let them have the money. Judge Lester had the note in his pocket. He took it out of his pocket and filled it out, and I asked Mrs. Lester to sign it, and she signed it. Then Judge Lester signed it. (Witness was here handed the note sued on.) That is the note; I reckon it is. Nothing has been paid on it. I am not positive that either of them told me what they wanted with this money. I just thought from what they said that they were getting the money to build with as they were fixing to build; they did build. The impression they left on me is that is what they wanted with the money. I could not state that positively. I do not remember that Judge Lester or Mrs. Lester either said anything about paying any debts they owed."
The appellee is corroborated by Mrs. Eula Clay Eustace, who said:
"Before I was married, I was Eula Clay, a daughter of Alec Clay. Mrs. Jacobs is my mother. I was present at the time Judge and Mrs. Lester came up to my mother's for some money. I was in the room at the time the transaction was had. They came down one morning some time between 10 and 12 o'clock, I think. They said they came for the money, and Mama insisted on a mortgage, and Mrs. Lester said: 'No, she would not sign any mortgage to her property any more.' She said her word was as good as a note, and her note good as a mortgage; and they said something about wanting $15,000, and Mama told them she could only let them have $10,000, and they filled the note out, and Mrs. Lester signed it first and then Judge Lester signed it. They were both talking for the money; I think one about as much as the other. Mrs. Lester does very well as a talker. She said her word was as — a note and her note as good as a mortgage, and signed the note first. I remember Judge Lester being there prior to that time, I think it was in November, and said they wanted to get some money; just said they wanted to get some money; I don't think he used any particular name. On that occasion of getting this money, I don't remember hearing Judge Lester say anything about wanting this money to pay off security debts or anything of that kind. I don't think they said what they wanted with the money; but they were speaking of their new home and the mansion all the time they were there. They were building a mansion at that time. I think they have completed it now. I don't know where this money went, whether it went into that mansion or not."
The conclusion of the jury upon the evidence was correct.
Assignments of error are based on the overruling of appellant's objection to the introduction by plaintiff, in rebuttal, of parts of the transcript of the testimony of Mrs. Eustace given on the former trial of this case.
A prior statement of a witness, in order to be provable for the purpose of impeachment, must be contradictory of or inconsistent with his testimony. Helton v. A. M. R. Co.,
The instant question was raised as to the same subject-matter and parties, in the same case. If, therefore, there were material inconsistencies or contradictions between the first and the last testimony of the witness, after due predicate the same might be given in evidence by her proper cross-examination as to the matters, or by a due introduction of that part of her former testimony that was in nature of impeachment within the rule. It should further be stated that a witness who has testified to certain facts is not to be discredited because of having omitted to testify to such facts on a prior hearing or trial, where the additional testimony as given is not materially inconsistent with or contradictory of the testimony formerly given; it must be rem ipsam and affect the credibility of the witness. People v. Lyons,
A further application of the rule from other jurisdictions is that if a witness acknowledges to have made them, the prior statements admitted by him to have been made "should not be permitted to go to the jury as cumulative evidence against the accused." State v. Reed, 49 La. Ann. 709, 21 So. 732; State v. Felix Robinson, supra. That is, they should be limited to the purpose of impeachment.
The general rule in this jurisdiction is that the testimony given on a former trial by a witness at the last trial is only admissible, after a proper predicate, for the purpose of contradiction or impeachment; it is not competent as cumulative or original evidence. Porter v. L. N. R. Co.,
The testimony of Mrs. Eustace on this trial in her direct and cross examination, was admitted without objection or exception. In her direct examination she testified that Judge Lester had been to see the plaintiff in November, and that he said "they wanted to get some money," and witness did not think "he used any particular name." To this tendency of evidence contained in witness' direct examination, the defendant replied by eliciting the following on cross-examination:
"I don't remember Judge Lester telling mother what he wanted with the money when he came in November the first time to getit; he might have told her, but I don't think he did; I have no positive recollection about it." (Italics supplied.)
On redirect examination by plaintiff, the witness had her attention directed to the statement of Judge Lester when he first went to plaintiff, and she said "they wanted to borrow some money," and witness thought "he used the word 'they' "; she was not positive that he used any name; that Judge Lester adverted to the fact that "his crop would be good," and "they would bring Mrs. Lester down and make Mama safe." The witness added that Judge Lester did not say "he would make her (plaintiff) safe by a mortgage; he said they would make the paper safe." Immediately the defendant, by a recross-examination, elicited from the witness the following:
"I was a witness in this case before. My testimony was taken down then by Mr. Caldwell, just as he is doing now. I was asked on cross-examination, 'Were you present when Judge Lester came down in November and made arrangements for it?' and I answered, 'Yes, I was present then.' I was also asked, 'What did he say then?' and answered, 'Judge Lester came in and told Mother he wanted to see if he could borrow some money, and he and Mrs. Lester would make it safe.' I also stated: 'When he came back the last time he said he came for the money and he brought his wife along to make it safe.' That is what I testified before. I think they are the words I used. On that occasion, on that trial I stated, in reply *619 to the question, 'So he made out the note and your mother asked Mrs. Lester to sign it first, that is the whole transaction?' 'Yes, sir.' "
There was no limitation as to the purpose of this former testimony.
After the introduction of other evidence on both sides, the bill of exceptions recites:
"The defendant then rested."
"On rebuttal, the plaintiff introduced in evidence the transcript of the testimony of the witness Mrs. Eustace, on the former trial as follows" — setting out three questions and answers. to which objections were overruled, exceptions reserved, motions to exclude overruled, and exceptions thereto reserved.
The effect of this rebuttal evidence was that —
by her former testimony Mrs. Eustace remembered Mrs. Lester and Judge Lester came there and said "they came after the money they had spoken for"; that "they would take $15,000 if she (plaintiff) had it", if not, "they would make out with $10,000"; that Mrs. Jacobs "insisted on a mortgage, and Mrs. Lester says, 'Well, my word is as good as my note and my note is as good as my mortgage,' and went on to say, too, if they wanted money on 30 days' time they could get it for her."
"Q. You mean if she wanted it back? A. Yes, sir. * * * That is about all I remember that passed, except they filled out a note and my mother asked Mrs. Lester to sign the note first, and she signed it first."
And in reply to the question, "Didn't Mrs. Lester explain to your mother why she came to her [for] money?" the witness answered:
"She said that mother had always been so nice to her that she had rather get it from her [Mrs. Jacobs] than any one else; that they always borrowed money from my father, and they had rather get it from her, and she said she insisted on Mr. Butler coming to her for money and asking him why he did not come to her for money, that she had always been so nice to them about loans."
The grounds of objections and motions to exclude this testimony by plaintiff were that it was not in rebuttal, called for illegal, irrelevant and immaterial testimony and was not offered by way of corroboration or impeachment of the witness. The last ground of objection made was not observed by defendants when they offered parts of the same former testimony of that witness in this cause.
In justification of the admission of plaintiff's said rebuttal evidence is cited Julian v. Woolbert,
If the defendants had admitted parts of Mrs. Eustace's former testimony without limitation and in the nature of original evidence, a reply in like character was justified in Bank of Phœnix City v. Taylor,
" 'When part of a conversation, or part of a transaction, is put in evidence, the opposing party may rightfully call for the whole conversation or transaction.' Gibson v. State,
"Illustrations in point will be found in Allen v. State,
This general rule has application to the rebuttal evidence offered by plaintiff.
We will consider only the refused charges invoked by the argument. Georgia Cotton Co. v. Lee,
The refusal of charge 11 may be justified in the limitations contained in the words "for her own use and not for the use of W. E. Lester." She may have procured the money for the completion of the home for the use of the husband and wife; she may have used the money she borrowed from an innocent third person by giving it to the husband (Warren v. Crow,
There was no error in refusing charge 9. It is covered by the oral instruction following:
"If the plaintiff merely loaned it to Mr. Lester and his wife going his security, she cannot collect it because the law forbids. If she was loaning it to both of them, if it was an independent debt both of Mr. Lester and Mrs. Lester, then she can collect."
Refused charge 10 is as follows:
"If any part of the money obtained on the note sued on was obtained for the use of W. *620 E. Lester, and the plaintiff, Mrs. Jacobs, knew that it was to be so used by him, then your verdict should be for the defendant Beatrice H. Lester."
The charge instructs for a verdict for defendant Beatrice H. Lester if any part of the money was obtained for the use of W. E. Lester and the plaintiff knew that it was to be so used by him. Where a part of the indebtedness is the joint or several indebtedness of the wife, it is valid to such extent. Mills v. Hudmon Co.,
Refused charge 8 singles out and gives undue prominence or emphasis to the particular or recited portions of the evidence and was properly refused. Miller v. Whittington,
Refused charge 15 was:
"The fact, if it be a fact, that Mrs. Jacobs, the plaintiff, would not have made the loan unless Mrs. Lester signed the note and also promised to pay same, and signed her name first to the note, would not render her liable, if she was in fact the surety for her husband."
This charge was substantially covered by given charge 2, as follows: "Under the law of this state, the wife cannot become the surety for the debt of her husband either directly or indirectly, and it makes no difference if the defendant B. H. Lester, the wife of defendant W. E. Lester, signed the note jointly with him and agreed to be jointly bound for the payment of the debt, if in fact the debt was that of defendant W. E. Lester, then your verdict should be for the defendant B. H. Lester."
And by the oral charge, saying:
"If this debt was the debt of Mr. Lester and this woman signed the note, Mrs. Lester, his wife, signed the note as security for her husband, then the note is void as to her, because, as I said to you, the wife could not bind herself or her property as security for her husband; it is expressly forbidden by our law. If, however, it was her debt as well as his, if it was the joint debt of both of them, and she was not acting as security when she signed the note but acting independently for herself and she and her husband, if they both made the note, then in that way both owed the debt, and this note is not void but is good, and the plaintiff could collect her interest. * * * So that from this testimony now you are invited to ascertain what was the real intention of the parties. That Mrs. Jacobs loaned this $10,000 there is no doubt, and no dispute about that; that Mr. and Mrs. Lester executed this note there is no dispute about that; that nothing has been paid on it there is no dispute. Now, whose debt was it? From all this testimony, gentlemen, whatever you find the truth to be, what was the real intention of Mrs. Jacobs and Mr. and Mrs. Lester about this money when Mrs. Jacobs loaned it? Was she loaning it to Mr. Lester and his wife going his security? If she was, she cannot collect now; it is lost as far as Mrs. Lester is concerned. If it was loaned to both of them, if the debt was Mrs. Lester's, she was borrowing the money as well as the other man and she was acting for herself when she signed the note, then she is liable, and there should be a verdict for the plaintiff if it is that way. * * * This testimony is all here to help the jury to look at [it] in a common sense way in the light of your observation and experience, etc., to find out what really was meant; who Mrs. Jacobs was loaning the money to. If she was loaning as I said, to repeat again; it is not necessary to repeat again; you understand it, but I will repeat it again: If the plaintiff merely loaned it to Mr. Lester and his wife going his security, she cannot collect it, because the law forbids it. If she was loaning it to both of them, if it was an independent debt both of Mr. Lester and Mrs. Lester, then she can collect."
This, we think, under the issues made by the pleadings and under the evidence, substantially and fairly gives "the same rule of law" (Acts 1915, p. 815) as that embraced in refused charge 15. No reversible error intervened in the refusal of said charge.
It will be unnecessary to consider the rulings on the motion for a new trial. We have carefully examined the whole record, and find no error.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and MILLER, JJ., concur.
Addendum
The cross-examination of the witness W. E. Lester complained of was not an abuse of that right (the matter being largely in the discretion of the trial court); the facts so inquired about were not palpably irrelevant, immaterial, and prejudicial in view of the witness' statement, in response to the specific question by Mrs. Jacobs' counsel, that Mrs. Jacobs gave him the "check," payable to him, and the "savings certificate," the two aggregating $10,000, and that —
"I paid my debts with it; debts that I owed and security debts; debts that I was personally responsible for. My wife did not get any of that money; she had nothing to do with it except sign the note as my surety."
It is then recited:
"Plaintiff objected to the question what he did with the $10,000. Court overruled the objection saying it may be premature but will come in later and as well now as at any time."
We think the cross-examination was proper as an inference in explanation or rebuttal of said general statement of the witness on direct examination. We did not overlook the able argument of counsel in the respects indicated. In fact, the same was considered and deemed insufficient to show error. We *621
should perhaps have been more specific as to these rulings on the cross-examination adverted to; finding no error or abuse of judicial discretion in respect of the cross-examination, we passed the same without specific comment. It is sufficient to say the several objections and exceptions are again considered and found to be without merit. The same have been considered in detail by the judges in conference, and no error is found. Middleton v. W. U. T. Co.,
The jury were properly instructed under the evidence as to the issue to be tried. This we indicated in the opinion. Requested written charges fairly covered by the court's oral charge and defendant's given charges were properly refused. Williams v. Ala. F. I. Co. (Ala. Sup.)
The application for rehearing is overruled.