McCamy v. Cavender, 92 Ga. 254

McCamy v. Cavender

92 Ga. 254 | Ga. | 1893

Bleckley, Chief Justice.

1. By the evidence act of 1889, an agent is disqualified to testify in behalf of his principal as to any transaction or communication between himself and the person with whom the transaction or communication was had, when that person is dead and his legal representative is a party to the suit on trial. But the act does not disqualify the agent to testify to transactions and communications between his principal and the deceased person, in which the agent took no part. As to what they *258did and said in his presence and hearing when he was doing nothing as agent, but was a mere passive spectator and listener, he is upon the footing of any other disinterested witness. Although Walker was the general ageut of his sister, the plaintiff’s testatrix, and in other instances had acted for her touching her business with Cavender, the defendant’s intestate, he did not so act at the interview between them concerning which he testified. He was wholly passive. His sister acted and spake-for herself, and Cavender did the same for himself. Neither by conduct nor speech did Walker represent her on that occasion; his functions as agent were in no manner exercised, but, for the time being, were completely dormant. This is fairly inferable from the tenor of his testimony. He was competent to prove what he saw and heard at that interview, and, so far as relevant, to-show the limits of the conversation between his sister and Cavender, as, for instance, that Cavender said nothing-of any other credit which should appear on the notes. He was incompetent to prove anything favorable to the plaintiff as to what payments were or were not made to him, or as to entering them on the notes or receipting for them, or as to anything he said to Cavender or Cavender said to him. The court erred in ruling out so-much of the testimony as related to the fact and date-of the interview and to what the witness then saw and heard, together with the further fact that on that occasion Cavender said nothing of any additional credit on the two notes which the parties to the intei’view had before them.

2. The two notes in suit were for $100.00 each. They were given for the purchase money of land. Both of these, and a third similar note, were outstanding on the first day of January, 1884, as appeared from a written instrument of that date, in which Cavender promised to pay the plaintiff’s testatrix ten per cent, on three such *259notes, in consideration of extending the time of payment. The inference is warranted that all three of the notes were mature at that date, though it does not appear to this court when any of them matured. Receipts produced by the defendant show that he made three payments, one of $80.00 in November, 1884, one of $50.00 in February, 1885, and one of $30.00 in January, 1886. The last two are credited upon the notes in suit, both on one or one on each. The first is not credited upon either of them, nor is it credited upon the third note, the latter note having been produced by the defendant at the trial. There was no evidence showing when or how this third note was paid off. The terms of the $80.00 receipt are equally applicable to each and every one of the three notes, the receipt mentioning notes, but not specifying any particular note. The amount embraced in that receipt is less than the principal of any one of the notes. As it was not applied to either of the two not paid off, the fair presumption is that it was applied in paying off the third. "When a note is surrendered to the maker on being discharged by payment, there is no occasion to take up a receipt which has been given for a partial payment. In this instance, the balance may have been paid very soon after the receipt was given, possibly on the same day, and this may account for failure to enter it as a credit. The possession of the third note by the maker’s administrator proves that it had been paid off, and the possession of the receipt as well as the note simply accounts for a partial payment which might as well be referred to that note as any other. So to refer it involves no inconsistency with the possession of the note or with any other fact in the case. There is nothing to indicate that this note was paid off before the receipt was given; the decided probability is, that all three of the notes were then outstanding. They certainly were on the first day of that year, *260and nothing appears by which to fix the time when one of them' was taken up.

We think the court erred m referring the $80.00 payment to the notes which were left out as unpaid, instead of to the one which was treated by the parties as paid and surrendered accordingly. In the absence of explanation, the surrender of that note was an application to it of the partial payment evidenced by the receipt.

Judgment reversed.