| Kan. | Jan 15, 1876
The opinion of the court was delivered by
This was an action brought by defendant in error upon a note executed jointly by plaintiff in error, and S. B. McCord and Geo. H. Stewart. The answer of plaintiff in error alleged payment in full made by Geo. H. Stewart, principal on the note. It appeared that Stewart had died prior to the commencement of the action. Two questions are presented: First, that the finding was against the evidence; and second, that there was error in the admission of testimony.
Under the well-settled rules of this court, we cannot disturb the judgment on the first question presented. The testimony of Esterly was clear and positive, and according to it a balance still remained due. While there was contradictory testimony, still there was not such overwhelming contradiction as compelled a different finding.
The other question is thus presented by counsel in his brief:
Plaintiff Esterly then testified in his own behalf, as follows: “Question by Plaintiff’s Coimsel.- State for what purpose the $150 mortgage, given in evidence by the defendant, was given to you by Geo. H. Stewart?” [The defendant objected to this question, that it was incompetent by virtue of the provisions of § 322 of the civil code, and was irrelevant and immaterial, which objections the court overruled, and defendant excepted.] “Answer. — The mortgage was given to me by Mr. Stewart, as collateral and additional security to the note in suit. The deed, read in evidence by the defendant, was taken in consideration of the credit of $75 indorsed on the note sued oh.*34 It was agreed between Mr. Stewart and myself, that the deed should be given me for the $75, and the $200 consideration named in the deed was not the true consideration. [ To the admission of the above evidence of Esterly, the defendant objected, that^ it was incompetent by virtue of § 322 of the civil code. The court overruled the objection, and defendant excepted.] “ I never had any conversation with Mr. Stewart, in the presence or hearing of his wife, as to the amount to be indorsed on the note in consideration of said deed. I was not present when the deed was made, and don’t know where it was made.”
That portion of the section referred to which bears upon the question provides, that a party shall not be competent to testify “ to any transaction had personally by such party with a deceased partner or joint contractor in the absence of his surviving partner or joint contractor, when such surviving partner or joint contractor is an adverse party.” This language seems applicable to the case at bar, and to render the testimony offered incompetent; and so we should be constrained to hold but for what had previously transpired. The burden of proof being, under the pleadings, upon the defendant, he opened the case, and called, as his first witness, the plaintiff Esterly, who testified:
“ * * * After this, Mr. Stewart brought me the note now in suit here, which I accepted, and gave up the old $240 note, and released the mortgage securing it. Sometime afterward he gave me another note for $150, secured by mortgage.” [Here a mortgage-deed, of which a copy is annexed, marked A, and made a part of the “ case made,” was handed to the witness.] “This is the mortgage given to secure the $150 note. Afterward, Mr. Stewart and his wife conveyed the property described in this mortgage, to me.” [Here a deed of conveyance, of which a copy is annexed, marked B, and made a part of the “case made,” was placed in the hands of the witness.] “This is the deed of conveyance just mentioned. Those above named are all the notes, deeds or mortgages, I ever got from Stewart.”
Now the testimony of the plaintiff in his own behalf was in reference to the same transactions of which he had testified at the instance of defendant. And while, if the defendant
These being the only matters presented by counsel, and in them appearing no error, the judgment will be affirmed.