Quinlan v. Davis

6 Whart. 169 | Pa. | 1841

The opinion of the court was delivered by

Rogers, J.

It is a principle of general application, that a party to a suit is not suffered to be a witness in support of his own interest ; nor can he be compelled in a court of law, to give evidence for the opposite party against himself. But when one of several co-plaintiffs comes forward voluntarily, or when called by the defendant, makes no objection, to disprove the defendant’s liability to the demand made upon him, he may be admitted, with the consent of the adverse party, though at the same time, he defeats the claim of those who jointly sue with him. For if the plaintiff were to make a declaration against his interest, out of court, evidence of that declaration would be admissible: and the proof is equally credible, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing, on oath, at the time of the trial. 10 East, 403. Norden v. Williams, (1 Taunton, 378.) Gallaher v. Milligan, (3 Penn. Rep. 177.) The objection, it seems, must come from the person called as a witness: it is therefore pretty clear, on the principles stated, that there was error in refusing to allow the testimony. But may not the case be rested on a broader ground; for would it be competent for a witness himself to refuse to testify on the facts disclosed! This point has not been directly decided; but we are of opinion it would not. For although it was once doubted whether a witness could be compelled to give evidence which might subject him to a civil action, or charge him with a debt, yet it has been since held that he is bound to answer a question, although his answer might render him liable to a civil suit. 1 Hall’s Law Journ. 223. His interest will not excuse him. The objection must rest solely on the exception that he is a party. But it must be obvious that the name of the witness who for the first time claims an interest in the suit, nowhere appears on the record. That he is so, is disclosed by himself on his voir dire; but we apprehend it is too late to claim a privilege which the law would otherwise allow him. Of this the plaintiff cannot complain, as this consequence may be avoided at the option of the plaintiff, by putting himself in a situation to be liable to costs, without subjecting the other side to the inconvenience and trouble of proving his interest aliunde. When the name is disclosed, both parties are put upon an equal footing. The plaintiff can neither be a witness in his own favour, nor. can he be compelled to testify against his interest. And this distinction may be salutary, as it may check the practice of omitting to name the real party, with a view to avoid costs, or, if necessary, to support the claim by his own oath. In the case of The King v. The Inhabitants of Woburn, (10 East, 395,) a rated inhabitant was not compelled to testify, although the nominal parties were the churchwardens and overseers of the poor, because he was considered a party, although not named on the record. And this would seem to militate against the distinction taken; but then, as in the case of every corporator who is not an officer of the corporation, the name cannot appear, as the suit is brought in the corporate name; and for this reason, he cannot be deemed to waive his privilege : but where it may, and in fairness ought to appear who is the real plaintiff, he should be entitled to no such exemption; for this would permit him to assume the character of a party, or a witness, as may best suit his interest. Here, as it appears that the witness was jointly interested in the note, the action may have been brought for their joint use; and on failure of the action, he would have been liable for costs; and an execution, as such, might have been issued against him; but as it now stands, he can only be reached by attachment, after satisfactory proof dehors the record, that the suit was' instituted for his benefit.

And these remarks have a bearing on the 2d and 3d exceptions; for the defendant cannot use him as a witness and a party also; and for this reason the court might very well refuse to order his ñame to be put on the record. Nor can his declarations be evidence, except in his character of party. It seems to me, however, that when it is discovered at the time of trial, by confession, or otherwise, that a person is really interested, the court may, and ought to add his name as plaintiff on the record.

The admissions of a party to the suit, against his interest, are evidence in favour of the other side, whether made by the real party on record, or by a nominal party, who sues as a trustee for the benefit of another, or whether by the party who is really interested in the suit, though not named. And this is-the extent of the doctrine as to admissions; for I know of no case where the principle has been so far extended as to receive evidence of the declarations which one of two co-plaintiffs has heard the other say, in regard to the subject-matter of the action. The evidence is properly restricted to admissions of material facts within the knowledge of the party making the admission, and cannot safely be extended to his declarations of the admission of others. The testimony which was rejected purported to be, not what he himself knew, but what he had heard the other plaintiffs say, as to the consideration of the note. It was therefore properly overruled.

The next exception is common to both suits. The defendant alleges that it was incumbent on the plaintiffs to prove that they gave, or offered to give to the defendant, a power of attorney, to do all business pertaining to the contract. But it is contended, from an inspection of the agreement, that this is an independent covenant, which goes to part of the consideration only, and that a breach of it may be compensated in damages. It is, therefore, as hag" been repeatedly ruled, unnecessary for the plaintiffs to aver or prove performance on his part. 6 Binn. 159. 1 Saun. 320. The burthen of proof lies on the other side; but in fact, the defendant has received no injury whatever. The section of the work stands in his name on the books of the company. He is regarded by the board, to all intents and purposes as the contractor. He is returned as such in the estimates of the engineer; and orders were given him regularly on the treasurer for the amount due, which was continued until he quit work. It would be monstrous, that the defendant, who has been in the enjoyment of all the benefits of the contract, should avoid it altogether, on the allegation, that the other contracting parties failed to comply with a part of the contract, when in truth the omission causes him little, if any injury.

The other exceptions have either been abandoned, or but feebly pressed.

The first case, Quinlan v. Davis, is reversed, and a venire de novo awarded. The second is affirmed.

Judgment accordingly.