Mitchell v. Tishomingo Savings Institution

56 Miss. 444 | Miss. | 1879

Simeall, C. J.,

delivered the opinion of the court.

This suit was brought by the Tishomingo Savings Institution, to recover from the plaintiff in error the balance due on an inland bill of exchange which his intestate had accepted.

The fifth section of the act incorporating the association, among other things, authorized the company to “invest its capital and profits, or any portion thereof, in bonds, notes, bills of exchange, or any other evidence of debt. * * * It may also deal in exchange, foreign and domestic (Acts 1867, pp. 470, 471, sect. 6), and it may receive on deposit gold or silver coin, bullion, bank-notes, treasury-notes, etc., etc., and pay and receive such rates of interest as may be mutually agreed upon.” Sect. 4.

The corporation had express power to ‘ ‘ invest ’ ’ in the bill of exchange, the subject of the suit. The contract was not “ ultra vires,” as argued by counsel for the plaintiff in error.

Exception was taken, in the court below, to the competency of Taylor, recited in the bill of exceptions to be president of the company. The ground of the objection was not named, but the specification made in this court is, that Taylor could not depose to conversations and transactions had with the intestate, in this - suit against his personal representative. He could not testify, it is said, because he was an officer of the corporation, — an ideal personage, which could deal with its customers only by its agents; and since (in this case) the party with whom the contract was made has died, the lips of the officer of the company are closed also. The exclusion made by the first clause of sect. 758 of the Code is of a person who has a claim against a decedent’s estate, proposed to be established by his own testimony. It ivas not alleged in the Circuit Coui’t, as an objection to Taylor, that he was interested in the bill of exchange or the money due upon it, and therefore would gain or lose by the result of the suit; but the disability was supposed to grow out of his relation to the corporation as its president. The general management of the business of the company is confided to three trustees, to be chosen annually by the stockholders, with power to make all needful rules for the management of the business, etc. Taylor was no further interested than is implied in his employment in the service of the company.

At common law, on considerations of necessity, an agent in the common course of his business was admissible for his principal,— such as a porter, cartman, common carrier, a factor or broker. 2 Stark, on Ev. 753, 767, 768, note 2. Though they might be the recipients of reward and commissions, and might be responsible over to their principals, yet are they admitted, because it is highly improbable that any person not interested should possess knowledge of the facts.- The rule, grounded on necessity, applies to and embraces a definite class, such as arises in the natural and usual course of human affairs. Ibid. In the case of United States Bank v. Stearns, 15 Wend. 316, it was held that the teller of a bank was within the rule. In Franklin Bank v. Freeman, 16 Pick. 538, the cashier of a bank was held to be competent. In declaring the competency of the same officer, in Strafford Bank v. Cornell et al., 1 N. H. 192, the court say, that although this servant of the corporation maybe answerable over fon negligence, and is interested to discharge himself, yet he comes within the exception to the general rule, “from necessity, and for the sake of trade and the common usage of business.” See 1 Greenl. on Ev., sect. 416.

So far as the record gives information, Taylor had no direct interest in the suit. He was not shown to have been a shareholder. He might be held liable by the company for negligence, entailing loss upon it, in respect of this debt ;.but that, in the sense of the authorities cited, would not exclude him at common law. Nor is he included in the statute referred to ; for the debt about which he was testifying was not Ms claim against the estate of the intestate. The defence of (payment was attempted to be proved by Glover, one of the drawers of the bill. He says, “ that about February, 187,2, witness and H. Mitchell, the acceptor, called to see plaintiff about the note [acceptance], and plaintiff stated to me that Mr. Crockett had deposited with him school-house warrants of Alcorn County to pay the same, and said note was settled.” “Mr. Taylor, president of the bank, informed [witness] it [acceptance] had been paid by I. D. Crockett, for Crockett & Glover,” as above stated.

Taylor, in his testimony, denied in toto the statement made by Glover. He deposed that no deposit of collaterals of any kind had ever been made to secure or satisfy the debt,, and that he never told Glover, or any person in his presence, that the draft had been paid, or satisfactory arrangements made for its payment.

I. D. Crockett, one of the drawers, also positively contradicted Glover. He says that he never deposited warrants to pay this draft, and that it never has been paid, to his knowledge, in any way. It was manifestly the duty of the jury to find against the issue of payment, as they did.

A letter from Glover to Taylor, dated the 21st of June, 1872, was read in evidence, against the objection of the defendant. The tenor of the letter was an admission of indebtedness, and an inquiry whether Mr. Crockett had paid it, which he doubted, on account of his pecuniary embarrassments. The only purpose of putting this letter before the jury was to discredit Glover, — containing ( as claimed) an admission inconsistent with his testimony. It may be conceded that Glover’s attention should have been directed to it, in the first instance, so that he might have had an opportunity to explain, and that its admission under the circumstances was improper; but it does not follow, therefore, in order to correct this error, that the judgment must be reversed. The appellate court will correct those errors, and those only, which have been, or may have been, prejudicial to the party who seeks their review. Why remand this cause for a second trial, if it is abundantly certain that the verdict must be for the plaintiff, with this letter excluded?

The tendency of this letter was to show that, at its date, this debt was unpaid, unless Crockett had taken it up. In that aspect of it, it was cumulative merely. Crockett swore that he never - had paid it, or made any provision for its payment. Taylor swore that neither Crockett nor any other person had paid, or arranged to satisfy, the debt. The testimony was irresistible that payment had not been made. A collateral circumstance in support of that proposition is, that about a year after it is claimed that satisfaction was made by the school-warrants, a small credit is made on the acceptance. The result is altogether right without the aid of the letter.

The rule is, that if the result is right on the whole case, there will be no reversal because of an erroneous instruction (Dozier v. Ellis, 28 Miss. 730) ; nor for the admission of illegal, or incompetent testimony to establish a point otherwise sufficiently proved by competent testimony. Barringer v. Nesbit, 1 Smed. & M. 22; Davis v. Black, 5 Smed. & M. 226.

There was enough to establish the plaintiff’s case proved by competent testimony without the letter, and no prejudice, such as this court ought to rectify, accrued to the plaintiff in error by its admission.

The judgment is affirmed.