12 Pa. 383 | Pa. | 1849
March 25.
The competency of Boas and Saeger, as witnesses for the defendant, after being released from liability for the costs of suit, was affirmatively determined when this case was here before: 2 Barr, 286; and nothing was advanced upon the last argument to induce us to depart from the conclusion then announced. The question does not fall within the doctrine of that class of cases, beginning with Post v. Avery; the object of which, we have more than once declared, was a return to the common-law rule, first departed from in Steele v. The Phoenix Ins. Co.; Carter v. Truman, 7 Barr, 325. See also, on this point, Berghaus v. Alter, 9 Watts, 386; Cameron v. Paul, 6 Barr, 322; and Talmage v. Burlinghame, 9 Barr, 25.
The admissibility of the fact, to which E. J. Saeger was permitted to testify, that in August, 1842, and subsequently down to the time of the assignment made by Boas and Saeger, there were goods enough in their store to pay the demand in suit, is contested in this court on two grounds; first, that no averment of actual loss, sustained by the defendant from the negligence or forbearance of the plaintiff, was contained either in the plea or notice of
The evidence embraced in the fourth bill of exceptions was also relevant, as it tended to establish the allegation of the plaintiff’s agreement to procure the signature of Joseph R. Saeger as a party to the obligation. The fact that the obligor, E. J. Saeger, informed his father of this agreement immediately upon his return home, and before any default on the part of the plaintiff, offered, certainly, some evidence that such an understanding had taken place between the parties. Nor is it obnoxious to the objection that it was mere hearsay. It is rather to be regarded in the light of a fact, consisting of a communication made to a proposed party in the transaction, and his assent to it. Its competency is in no degree impeached, because the fact owed its existence to oral intercourse. It does not therefore come within the principle which excludes mere hearsay, or conversations between third persons in the absence of him who is to be affected by them.
We have failed to diseern any error in the charge of the Court. The facts in proof seem to have been candidly stated, and the legal principles applicable to them lucidly given to the jury. One ground of defence was, that the agreement of the parties present at the execution of the note was that General Saeger was also to become a party to the bill single, as one of the sureties. In reference to this, the Court instructed the jury that, if the other sureties consented to lend their names only on condition that Saeger should join them in this responsibility, and Miller agreed to make application to Saeger for his name, but neglected to do so, though the former was willing to comply with the arrangement, the contract was not perfected, through default of the plaintiff, and, consequently, he could not recover.
It is not to be doubted that this was a true exposition of the law. Such a defence, sustained by proof, goes to the whole claim, and not merely to such proportion of it as Saeger might have been compelled to discharge had he become a co-surety. The case was expressly put upon proof of a condition influencing the 'action of the defendant; and if such was the case, surely he had a right to
But it is urged that there was neither sufficient proof of the defendant being a surety, nor of a contract to forbear suit against Boas and Saeger, for a definite period, upion a sufficient consideration. The idea seems to be that, as Stem was a principal in the original bill single, he must be taken to have so continued as a party to the second obligation, inasmuch as the debt, to secure which these were given, was contracted by himself and his then partner. But this argument overlooks the material fact that he had withdrawn from the partnership, after transferring the stock in trade to his copartner, who, it is testified, undertook to pay the debt in question. It is true this arrangement could in no degree affect Miller’s rights, who might have insisted on retaining his hold on Stem, as principal debtor. But had this course been pursued, the latter might have refused to give a new obligation, and thus compelled payment of the old out of the stock in the store. • There is evidence that this was his determination; for it is in full proof ho refused to execute the second obligation, except in the character of surety, and that Miller agreed to accept him in that character. If, in pursuance of this arrangement, the first bill single was surrendered upon the execution of the second, it is in vain to say Stem might be charged as principal, though the claim against him as surety failed. By the second arrangement, the original transaction
In the instance in hand, the President of the Common Pleas very fairly called the attention of the jury to the circumstances which led to the execution of the second bill, and the facts which took place after it fell due; and, stating the legal principles that were to govern their deliberations, submitted to them the disputed facts of suretyship and forbearance. I have already said, of the first of these there was proof, and the same observation is true of the second point, if the testimony of John D. Boas, in some degree sustained by his partner, Saeger, is at all to be relied on. He swears that, at the suggestion of Miller, made after the note matured, in the store of the partners, he paid Miller $3 or $5 to purchase an extension of time until the succeeding July, which Miller expressly agreed to give. Here, then, is proof of place, circumstances, consideration, and definite time, followed by the forbearance stipulated, fully sufficient to satisfy the exigencies of the note, of which the answers given to the plaintiff’s points, taken in connexion with the general charge, we think sufficiently instructed the jury. It may be they ought not to have given credence to the witness, but this was not the fault of the Court. But the plaintiff complains that it was remiss in not instructing the jury altogether to discredit the evidence delivered by John P. Boas, because of the alleged contradictions and discrepancies observable on a comparison of his former testimony with that given on the trial. Had the Court done so, it would have been error. The credit due to witnesses is a subject for the jury, and there is no rule which dictates the entire discredit of a witness who varies in his statements, unless the contradiction be satisfactorily explained by himself. He is undoubtedly entitled to an opportunity to do so: 1 Greenleaf’s Ev. § 462 and note; but his failure of success will not necessarily
On the whole, we are satisfied the trial of the cause was properly conducted, and the instructions given to the jury correctly founded. Nor is there any soundness in the complaint that the Court declined or evaded the duty of specifically answering the plaintiff’s points. The responses were sufficiently clear, and very properly looked to all the facts in proof.
Judgment affirmed.