Menk v. Steinfort

39 Wis. 370 | Wis. | 1876

LyoN, J.

The testimony tending to show to whom or for whose benefit the Leshinger mortgage was paid, had a direct bearing upon the second question submitted to the jury, to wit, the question of consideration, and, as we understand the charge given by the judge to the jury, was expressly confined to that question. Hence, we think the testimony was competent. But if it was not — if the court erred in admitting it,— the error is entirely immaterial, since the jury found that the signature to the alleged note is a forgery. After such finding, the answer to the second question was entirely superfluous, and, if wrong, can harm no one.

2. The plaintiff offered her husband as a witness generally in the cause, and not specially to testify only to matters in which he had acted as her agent. TJnder this general offer, it would not have been error had the court rejected him without ■qualification. This was ruled in Mountain v. Fisher, 22 Wis., 93. Hence, the qualified rejection of the husband as a witness cannot be error, even though the court may not have ■stated with entire accuracy the limits to which the testimony of an aj>-ent husband or wife should be confined. The learned ■circuit judge very properly observed that the husband was ■competent to testify to his acts .as the agent of the plaintiff; but he further remarked that the husband could only testify to acts so done by him when the plaintiff was not present. *We do not think this qualification can be sustained. Ho good reason is perceived why the husband may not testify to acts as the agent of his wife, done by him in her presence, as well as in her absence. But for the reason already stated the inaccuracy is harmless. Besides, it is a fair inference from the record' that the plaintiff offered her husband to prove by him that he did not act as her agent in collecting the Leshinger mortgage. Clearly he was not a competent witness for that purpose.

3. The incorrect statement made by the judge to the jury, to the effect that tire plaintiff had testified that the defendant’s intestate was to reassign the Leshinger mortgage as a part of the consideration for the reconveyance of the property mentioned in the above statement of 'the case, is not ground for reversing the judgment. .The inaccuracy was immediately ■discovered and corrected. It is not possible that any person of ordinary understanding could have been misled by the misstatement, when it was so promptly corrected.

The foregoing observations dispose of all the material errors alleged by the appellant adversely to her. It follows that the judgment of the circuit court should be affirmed.

By the Oowrt. — Judgment affirmed.