10 N.Y.S. 545 | N.Y. Sup. Ct. | 1890
The principal question is as to the admissibility of the testimony of the defendant under section 829, Code Civil Proc. The witnesses Hanley and Peek testified on behalf of the defendants to the effect that John Mitchell, one of the mortgagees and partners, of whom plaintiff is the survivor, and the defendant Robert Cochran had some conversation in October or November, 1876, about a mortgage, and that he saw Cochran pay John $60, and John then said he would send up a satisfaction in a few days; that that made them all square. The plaintiff, the surviving partner, then testified in his own behalf that in October, 1876, the defendant asked him to go to Amsterdam, and get some coal and iron for him, and that he would give, him the money for the purpose. Speaking with reference to a few days later, the plaintiff continued thus; “He [the defendant] gave John $60 to hand to me, to go to Amsterdam and get coal and iron, and pay for it. I was not at home. When I came home John gave me the $60, and I went the next week and got the coal and iron.” The defendant Cochran, in his own behalf, the plaintiff’s objection under section 829, Code Civil Proc., being overruled, then testified with respect to the transaction between him and John Mitchell, the deceased partner, as follows: “I came up to the bar and said to John Mitchell, ‘Here is $60, balance of that $70 I borrowed of you, and this makes us all square.’ He said it did. I spoke to him about the mortgage. I told him I wanted that taken care of, and he said: ‘I will send you a satisfaction in a few days.’ That is the only $60 I paid to John Mitchell in October, 1876. Nothing was said about Pat [the plaintiff] taking that $60 and going to Amsterdam to get coal and iron. He went after coal and iron in 1874. I did not in 1876, nor at any other time, give John Mitchell $60, and request him to hand it to Pat to go to Amsterdam and get coal and iron.” The plaintiff’s several motions to strike out the parts of this testimony relating to the personal transaction with John Mitchell were denied, and plaintiff duly excepted.
It is obvious that the plaintiff testified to what John told him the defendant handed him the $60 for. He testified to the interview between John and himself, but not directly to the interview between John and the defendant. If the defendant had chosen to object to the testimony, we perceive no ground, upon which the referee could have admitted it. But the defendant was not obliged to object. If the plaintiff chose to give testimony which by
The case is not without difficulty upon the facts. We are inclined to think that, when the mortgage was given, the defendant did owe the firm $60, and the mortgage was made for $260, in anticipation of further advances to the defendant, or to protect the defendant from other creditors. The evidence is quite satisfactory that the defendant paid the $60 to John Mitchell, and that the latter admitted satisfaction, and promised to give the proper evidence of it, but never did. It is reasonably clear that the plaintiff has confounded transactions prior to the mortgage and distinct from it with the transactions affecting the mortgage. That the defendant at one time offered to pay the plaintiff $160 to settle the mortgage is not disputed, but this probably was for the sake of peace, and not as a tender. We think the finding, for the defendant accords with the justice of the case. Judgment affirmed, with costs. All concur.