3 Wend. 380 | N.Y. Sup. Ct. | 1829
By the Court,
The defence was, that the bond on which this suit was brought was never delivered by the defendants, which fact was offered to be proved by a coobligor, as to whose execution of the bond there was no 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 the nine obligors, he must pay one ninth part of it; if but jive executed the bond, and the witness was one of the five, his liability would be increased in nearly a two fold ratio. His interest would prompt him to sustain the bond. There is, therefore, no objection 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 verdict for the defendants would prove that these four defendants never executed the bond ; but that would by no means prove that the witness did or did not ex. ecute it. I am of opinion, therefore that both Squire Monroe and Asher Tyler were competent witnesses.
It was also proper to shew that the condition on which this bond had been signed was rejected by the plaintiffs or their agent, and that an entire new contract of loan had been entered into between the plaintiffs by their agent and the five obligors who are not defendants in this cause. If a bond be signed, and put into the hands of the obligee or a third person on the condition that it shall become obligatory upon the performance of some act by the obligee or any other person, the paper signed does not become the bond of the party signing the same until the condition precedent be performed. Until then there is no contract. Evidence of such facts should have been admitted.
1 am of opinion, therefore, that a new trial must be granted, costs, to abide the event.
