Schermerhorn v. Schermerhorn

| N.Y. Sup. Ct. | Aug 15, 1828

By the Court,

Woodworth, J.

The plaintiff is entitled to recover, unless it appears that the note was given for a partnership debt of Jesup and Hickcox, and that all the members of the firm of Schermerhorns and Van Alstyne did not consent to become bound. Van Alstyne affixed the signature. There is no evidence that John I. Schermerhom, one of the partners, was consulted, or had any knowledge of the transaction.

The law is well settled, that where one of" two partners subscribes the copartnership name to" a note, as sureties for a third person, without the authority or consent of the other-partner, the latter is not bound; and the burden of proving the authority or consent, lies on the creditor or holder of the-note. (Foot v. Sabin, 19 Johns. R. 154.) Under this rule, the defendants offered to prove certain entries.in the books of the firm of Hickcox and Jesup, to show that they had made a memorandum, whereby Cornelius Schermerhom, (he testator, was credited with the note in question. The evidence was admitted. The entry was as follows: “ May 1, 1814, Cornelius .Schermerhom, Cr. by our note bearing date 23d April, 1814, for $360.” There were several ether entries of a similar character.

The first question is, was the evidence admissible 1 I think it clearly was not; on the ground that it was no more than the declaration of a party, which is never evidence to establish a fact in his favor. If it does not go to the point, that ® s Schermerhorn and Van Alstyne were sureties, then it was immaterial and irrelevant, and ought not to have been admitted. This case is distinguishable from that of Rooseboom v. Bellington, (17 Johns. R. 183.) It was there held, that an indorsement on a bond or note, by the obligee or promisee, without the privity of the obligor or promisor, is not admissible evidence of a payment, unless it be first shown that it was made at the time of its date, or when its operation would be against the interest of the party making it. The principle established is, that it must be against the interest of the party making the entry, as between him and the party with whom he is litigating. Here there was no such interest. Whether Hick-cox and Jessup were principals or sureties, in no way affected the payee of the note: in either case, his remedy was perfect against them. As to Hickcox and Jesup, it was indeed against their interest to say that they were principals; for it proved, that had they paid the whole, no claim would arise to call on the other makers for contribution. But with all this the testator had no concern.

The next question is as to the admission of Jesup. He had been discharged under the insolvent act, and both himself and Hickcox released as to all claims of the co-defendants, present and prospective. His discharge not being impeached as fraudulent, I do not perceive that he had any interest in the question. The objection rests on his being a party on the record. Was it competent to take a verdict in his favor, and admit him as a witness for his co-defendants % In cases of torts this is admissible. Where no evidence has been produced against one defendant, he may be examined as a witness for a co-defendant; but if there is the slightest evidence against him, it cannot be done. (Brown v. Howard, (14 Johns. R. 122. 15 Johns. R. 223.) So also the evidence of a party has been received, to prove the loss of a written instrument, on the ground that it is addressed solely to the judge, who is to determine without the intervention of a jUVy_ (Jackson v. Fryer, 16 Johns. Rep. 198.) Beyond' these cases, the rule, both in England and here, seems to have been to exclude a party as a witness. A different rule has prevailed in Pennsylvania. A plaintiff, who had assigned all his property, and released the money which might be recovered in the action, was held competent to testify. (3 Binney, 306.) In that case, it was strongly urged by counsel, that very dangerous innovations in the law of evidence had been made in that state since the revolution. Chief Justice Tilghman admits, that no instance had been shown of the plaintiff’s being received as a witness in an action at law in England. He observes, the reason for admitting such evidence is much stronger in Pennsylvania than in England ; and one reason given is, that there is no court of chancery in Pennsylvania. It is evident the case in Binney proceeded on the ground of former cases decided in that state, and on what they considered the reason of the law; but it may be observed, that many rules which may appear artificial and resting on precedent only, will, on close examination, appear to be deeply laid in a knowledge of mankind, and in a regard for the great interests of the community. The system of evidence adopted by the common law is calculated to aid in the attaining of truth, by making a judicious selection of the channels through which it shall be sought. In the cases alluded to, the principle of interest does not present itself. Motives of policy are called in for the purpose of resisting testimony in certain cases, and thereby prevent the consequences supposed to result from its admission. It cannot be doubted, that although a plaintiff may have assigned his interest, he comes to testify under" a strong bias. He feels that the cause is his own, although he may have executed an assignment, and is secured as to the costs. The defendant is entitled to full and fair protection against testimony derived from the opposite party. Is not this security put in danger by allowing the plaintiff on record, under any circumstances, to appear as a witness'? He may not strictly be interested, but the policy of the law may have wisely excluded him.

In 3 Esp. R. 25, and 3 Camp. 283, which were actions on contracts, defendants who had been discharged as bankrupts were offered as witnesses, and in both cases .were rejected; in the one case by Lord Kenyon, and in the other by Lord Ellen-borough. These were nisi priiis cases; but they appear to have been acquiesced in. There does not appear to be any case in the English books, treating of the doctrine of evidence to the contrary. If so important a principle was recognized by law, we might expect to find it asserted.

In the case of Nordon et al. v. Williamson, (1 Tamil. 378,) the defendant called one of the plaintiffs as a witness; he was sworn, and verdict for the defendant. A motion was made for a new trial, on the ground that the testimony was inadmissible. Mansfield, Ch. J. observed, that he did not remember a plaintiff to have been called as a witness, and perhaps the same thing may rarely occur again; that he knew no reason why, if the defendant is willing to admit the plaintiff and he is willing to give evidence against himself, he should not be suffered so to do. Chambre, justice, said, “ The defendant may waive the objection to the plaintiff’s testimony if he will.”

This very clearly shows, that the examination of a party (undoubtedly referring to cases on contract) was a thing unheard of. It will scarcely be contended that the question was here raised on the ground of interest. The plaintiff was admitted by consent, and yet it was contended that his testimony was inadmissible. It cannot be believed that counsel would seriously urge, or the court sit gravely to decide, that an interested witness might be admitted if the parties consented. The argument must rather have been, that no rule of evidence permitted a party, in any case, to be a witness. The court thought that consent was sufficient to admit even a party.

It seems to me that Jessup was not a competent witness. If he had been competent, I incline to think the verdict ought not to be disturbed; for although the charge of the judge was not, according to my view correct, in saying that the entry in Jessup and Hickcox’s books was evidence to be taken into consideration by the jury, yet the testimony of Jessup, had it been competent, was ample to sustain the verdict.

New trial granted ; coats to abide the event.