82 Ark. 86 | Ark. | 1907
(after stating the facts.) The question presented by this appeal is whether the court was justified under' the state of the evidence in directing the jury to return a verdict for the defendant. The plaintiffs had made a prima facie case by introducing promissory notes which the defendant and one Gibhart had executed to the bank. The defendant, Baker, admitted that he had signed these notes as surety to enable Gibhart, the principal in the note, to borrow money from the bank, and it is not claimed that the notes had been paid. But the defendant testified that after the notes became due he had served written notice on the cashier of the bank to bring suit on the notes, that the bank failed to bring suit, and he claims that he was released from liability by virtue of the statute which made it incumbent on the bank to bring suit within thirty days after receiving such notice. This plea of notice to the bank to bring suit was an affirmative defense set up by the defendant, and the burden was on him to prove it. The only evidence he offered was his own testimony. To rebut this the receiver of the bank introduced the cashier of the bank, upon whom plaintiff testified that he served the notice, and the cashier testified that he had no recollection that any written notice to bring suit on the notes had been served upon him; that he would not say that none was served, but that if any was served he did not remember it. This was all the evidence bearing on this point; and as the only witness for plaintiff testified -that he could not say that notice was not served, though he did not remember it, the trial judge treated the evidence of the defendant as uncontradicted, and directed a verdict in his favor. But we are of the opinion that under the evidence this direction was improper. It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury. Roseberry v. Nixon, 58 Hun, (N. Y.), 121; Wohlfahrt v. Beckert, 92 N. Y. 491; Thomasson v. Groce, 42 Ala. 431; Talcott v. Meigs, 64 Conn. 55; Miller v. White River School Tp., 101 Ind. 503; 6 Enc. Plead. & Prac. 696; Ruiz v. Renauld, 100 N. Y. 256; Kelly v. Burroughs, 102 N. Y. 93.
In this case the witness was the defendant in the case. He was not only directly interested in the result, but there was the added circumstance that the party upon whom he testified that he served notice swore that he had no remembrance of any such service. If this witness told the truth, the fact that he had no recollection of the service of notice to which defendant testified was a circumstance from which the jury might have inferred that no service was in fact made, and that -defendant was mistaken in so testifying. If we could go into a consideration of the weight to be attached to this evidence, we might agree with the trial judge that the judgment for defendant was right; but, as before stated, we are of the opinion that the matter was one for the jury to determine.
The evidence in this case shows that the cashier upon whom defendant claims to have served notice had entire charge of the business of the bank, the president being such in name only, and under such circumstances the service of notice on the cashier was service on the bank.
As the case must be reversed, we call attention to the fact that, as shown by the transcript, one of the notes sued on in this case was for one hundred dollars and interest, and it has been d'ecided that the circuit court had no original jurisdiction to entertain an action on such note, even though joined with the other note of which the court had jurisdiction. Berry v. Linton, 1 Ark. 252; Martin v. Freeman, 18 Ark. 257; Gregory v. Williams, 24 lb. 177; Humphrey v. McCauley, 55 Ark. 257.
Judgment reversed, and cause remanded for a new trial.
