6 Me. 364 | Me. | 1830
delivered the opinion of the Court at the adjournment in August following.
We are of opinion that the special contract which was offered in support of the second and third counts, was properly rejected, as not applicable to either of them. If the plaintiff can maintain the action, he must recover on the first count for money had and received. The case presents two questions, as to the correctness of the decisions of the jhdge who sat in the trial. 1. Whether the parol evidence which was objected to by the defendant should have been excluded. 2. Whether Wm. McCann, who was offered by the defendant, and whose testimony the jury were instructed to disregard, was a competent witness. As the more convenient course, we will reverse the order in which the objections were made, and in the first place examine the question respecting the competency of McCann. The principle of law on the subject of incompetency is stated in these words. 2 Stark. Ev. 744. “ The interest to disqualify must be some legal, certain and immediate interest, however minute, in the result of the cause, or in the record, as an instrument of evidence acquired without fraud.” In the leading case of Bent v. Baker, 3 D. & E. 27, and in Smith v. Prager, 7 D. & E. 60, the rule as laid down was “ that no objection could be made to the competency of a witness upon tho ground of interest, unless he were directly interested in the event of the suit, or could avail himself of the verdict, so as to give it in evidence on any future occasion, in support of his own interest.” These are two distinct kinds of interest. Starkie says, page 746, “A party has such a direct and immediate interest in the event of a cause as will disqualify him, when the necessary consequence of a verdict will be to better his situation, by either securing an advantage, or repelling a loss; he must be either
The next question is of more difficult solution. As doubts have often been expressed with respect to the decision of this court in the case of Steele v. Adams, in consequence of the ruling of the judge at the trial, we have been called upon to review that decision, and the principles and authorities on which it was made, and those also opposed to it. And we have listened with much pleasure and profit to the re-examination of the subject at the argument, with an earnest desire to correct whatever should be found erroneous in our former ■opinion. The question is by no means free frorn^ difficulties; and
Our continued inquiry is, whether, in the case at bar, the parol proof objected to was properly admitted, and, when admitted, forms a basis which will support the verdict. In Steele v. Mams, the deed was delivered — no part of the consideration was paid, nor any security given-r-the defendant merely promised to settle for it, and then violated his promise. The facts of the case before us are in several respects different. The plaintiff was permitted to prove, and did prove, that the whole consideration of the conveyance from the plaintiff to the defendant was $ 1100, (about $700 of which was paid at the time,) and that about $400, part of the consideration, had never been paid to the plaintiff, but was left in the hands of the defendant to pay the mortgage on the Hall farm; and at the same time, when the deed was so made, the defendant signed the agreement of the 10th of March, 1829, thereby agreeing to cancel the mortgage deed which was given by William and John ScMllinger to William C. Whitney, of the Hall farm, so called. Thus the whole transaction in relation to the conveyance of the title, and the payment of part and security for the residue of the consideration, was closed at the same time. Now, what is the fair construction which this transaction and the defendant’s agreement ought to receive ? This was accepted in part payment of the consideration, and as an equivalent for the sum left in the hands of the defendant, for the express purpose therein stated. It certainly must be competent for either party to show such facts as these, or the most gross injustice may he done in a thousand instances. Suppose A sells a tract of land to B, and makes a deed to him in usual form, containing an acknowledgment of having received the consideration of $500; and suppose also that at the time the deed is delivered, B gives A a promissory note for the .$500. And suppose also that A should bring an action for the price
We proceed now to examine the remaining facts, and ascertain whether the action is maintainable on the general count for money had and received. The sum of $400 was left in the hands of the defendant, to pay the mortgage on the Hall farm. Now it is alleged in the second and third counts that the land mortgaged to Whitney was lot No. 66, which was not the Hall farm, though it was supposed to be. It does not appear, nor is it pretended, that there was any other mortgage to Whitney than of the lot No. 66. There never was any mortgage of the Hall farm ; and the defendant’s agreement of March 10, has no reference to any other, and it
Judgment on the verdict.
After the foregoing opinion was delivered, Fessenden produced a release from the plaintiff to the defendant, of this suit and all demands; which had been executed since the verdict; and moved to have it entered of record as a discharge of the action; contending that as Whitney, the assignee, had no right of action on the written promise, and the count for money had and received was now the only foundation of the suit, the money found due by the verdict was not within the terms of the assignment, and so belonged to the nominal plaintiff.
Sed PER Curiam. The promise was to pay off a non-existing mortgage. The assignment was not only of the paper, but of the indebtedness of the man who signed it, so far as relates to its consideration and subject matter; and if the assignee cannot recover on the written promise, yet he may on any money counts, properly framed upon that transaction. Mr. Whitney therefore is the plaintiff in interest as to the money count also. The money was left in the hands of the defendant, for a purpose which cannot be accomplished j and the plaintiff recovers it for the use of his assignee.
Motion denied.