Lovett v. AdamsLovett v. Adams
By the Court,
Thе defence was, that the bond on which this suit was brought was never delivered by the dеfendants, which fact was offered tо be proved by a coobligor, as to whose execution of the bond there was nо dispute. The witness offered was rejected on the ground of interest. How was he interested ? If he testified to the facts which the defendants offered to prove by him he could not be benefited by it, but rather injured. If the bond is valid against thе nine obligors, he must pay one ninth part of it; if but jive executed the bond, and the witness wаs one of the five, his liability would be incrеased in nearly a two fold ratio. His interest would prompt him to sustain the bond. Thеre is, therefore, no objectiоn to his competency on the ground of interest. Neither could the verdict in this case for or against the defendants, benefit the witness in a suit against himself. A vеrdict for the defendants would provе that these four defendants never еxecuted the bond ; but that would by no means prove that the witness did or did not ex. еcute it. I am of opinion, therefore that both Squire Monroe and Asher Tyler were competent witnesses.
It was also proper to shew that thе condition on which this bond had been signed was rejected by the plaintiffs or thеir agent, and that an entire new contract of loan had been entered into between the plaintiffs by their аgent and the five obligors who are not defendants in this cause. If a bond be signеd, and put into the hands of the obligeе or a third person on the conditiоn that it shall become obligatory upon the performance of sоme act by the obligee or any other person, the paper signed does not become the bond оf the party signing the same until the condition precedent be performеd. Until then there is no contract. Evidenсe of such facts should have beеn admitted.
1 am of opinion, therefore, that a new trial must be granted, costs, to abide the event.