Ware v. Bennett

18 Tex. 794 | Tex. | 1857

Wheeler, J.

That a payment of usurious interest was voluntary is no answer to the application of the debtor to have it set off, or appropriated to the reduction of the principal; nor is the Statute of Limitations an answer to such application, while any part of the principal remains unsatisfied. (Crutcher v. Trabue, 5 Dana, 80; Booker v. Gregory, 7 B. Monr. 440, 442.) It is treated as a payment upon that which the law recognizes as a subsisting debt; and the Statute of Limitations does not apply to payments. Whatever contracts were made for the payment of usury were void under the Statute, and the plaintiff can claim no benefit under them. (Hart. Dig. Art. 1609.)

The plea admits the loan, and sets forth various payments of usurious interest, not amounting in all to the principal sum loaned ; and concludes with a prayer for general relief. It is immaterial by what name the plea is called, or in what form the relief is claimed. The Court will look to its substance ; and that is, to have the payments deducted from the defendant’s indebtedness upon the loan. The amended petition does not contain any matter in legal avoidance of the case stated in the plea ; and the Court rightly so adjudged upon the exceptions. The only question to be decided upon the case stated in the plea was, how much of the loan had been reimbursed, and how much remained unpaid. Whatever so remained, after deducting the payments, the plaintiff was entitled to recover, and no more.

The prior mortgage was subsisting and unsatisfied when the plaintiff’s was taken. The record was notice to the plaintiff. The only ground on which he can claim to have it postponed to his junior mortgage, is that of fraud affecting the prior mortgagee. The question of fraud was fairly submitted to the jury by the charge of the Court; they found against the plaintiff upon that question ; and their verdict was well warranted by the evidence.

The charge of the Court was correct; and there was no error in refusing the instruction asked by the plaintiff.

There was no error in admitting the transcript of the proceedings in the United States District Court, in the matter of the foreclosure of the prior mortgage. The existence and validity of these proceedings had been put in issue by the petition ; and it was competent to prove the fact of their existence. They were admissible under the pleadings, as conducing to show a continuous and consistent claim and assertion of right and title in the first mortgagee.

The only question presented by the record, on which there is cause to hesitate, is as to the correctness of the ruling of the Court rejecting the witness Darragh, as incompetent to testify. The grounds for excluding the witness were : first, that he was a party to the suit; second, that he was interested in the event of the suit. It is the general rule of the Common Law Courts, that a party on the record cannot be received to testify, either in his own favor, if objected to by the opposite party, or against himself if he object. Whether he shall be received to testify upon the merits, after all interest is removed, and where he is willing to testify, in favor of the opposite side on being called for that purpose, depends, it is said, mainly on the question whether the rule of exclusion go upon the mere abstract objection that he is a party, or that he must have some interest connected with that relation. Upon this question there are different and conflicting opinions; and the decisions are not uniform, either in England or this country upon the question of the ground of exclusion, nor, consequently in the application of the rule. (1 Cow. & H. Notes to Phil. Ev. 46 to 56.) In a comparatively late case in England a plaintiff on the record, though a mere trustee and destitute of all interest,, was excluded by Lord Tenterdon at nisi prius. But a still more recent case is said to have shaken that principle; and to-have approximated to the doctrines of the Court of Chancery,, and of some of the American Courts of Law. It underwent much consideration by the Common Pleas, and seems to have put the question of policy, on which the rule of exclusion has been supposed mainly to rest, entirely out of the case, provided the party consented to be examined; and to rest the whole-inquiry upon interest alone. (Id. 48; Worrall v. Jones, 7 Bing. 395.) In the American Courts of Law, it will be seen-by the cases collected in Co wen & Hill’s notes to Phillips’ Evidence, there have been conflicting decisions. In Chancery a party totally disinterested is constantly received as a compe tent witness. (1 Cow. & H. Notes, 49, 51, et seq; Sharp v.. Morrow, 6 Monr. 304-5.) It would.seem, on principle, that the more liberal rule of Courts of Equity ought to obtain in the Courts of this State. It was accordingly applied in the case of Parsons v. Phipps. (4 Tex. R. 341.) That case decided that the merely being a party to the record does not of itself render the party incompetent to testify, when called for that purpose by the opposite party: if willing to testify, he is competent, notwithstanding the objection of his co-plaintiff, or co-defendant, provided his interest, if any, in the suit, is adverse to the party calling him. The decision makes the competency of the party, when he is called by the opposite party, and is willing to be examined, rest on the sole question of interest. Apart from the consideration that the rule maintained by this decision seems supported by the better reasons, especially considered in reference to our practice, its early adoption by this Court is a sufficient reason for adhering to it, in the conflict of the decisions of other Courts. Nor does the case of Dial v. Crain (10 Tex. R. 444) maiútain a different rule. In that case, the plaintiff, who sued as administratorr proposed himself as a witness to support his own case. The-principle on which he was excluded was, that he was not a competent witness to testify in favor of the interest he represented, as a party upon the record.

Darragh, though but a naked trustee, might well be made a party ; and the institution of the suit to enforce the security by judicial process, determined his interest in the power conferred on him in the deed. However the case might be decided, he could not proceed to execute the power. (Shelby and. Wife v. Burton, supra 644.) If his position in the case rendered him liable, in any event, to a judgment for costs, his interest, in so far, was adverse to the plaintiff. When called by the plaintiff, therefore, he was not incompetent under the decision in Parsons v. Phipps, merely because a party to the suit, nor because of any pecuniary interest in the event of the suit, merely as a trustee with a power to sell.

But it is insisted that, having acted as agent of the plaintiff in making the contract, he would be liable over to his principal for his wrongful act or negligence in the performance of his agency. If, without the authority of his principal, he had loaned his money on usurious interest, it is said, he would be liable to his principal for the loss of legal interest, sustained by his misconduct. It is a sufficient answer to this, that the principal has ratified the contract of the agent, by seeking to enforce it in this suit, and to avail himself of the usurious interest contended for by the agent.

As to the liability of the agent for taking insufficient security, it does not appear that the security taken was insufficient! though the plaintiff should fail in this suit to enforce his mortgage security. He still has the personal liability of the defendant Bennett and Hubbell, and for anything that appears, that may be ample security. But there is no question made in this case, as to the propriety of the acts of the agent. It is not sought to charge the principal on account of any act or omission of his. The case does not depend on the question whether the agent has been guilty of any tortious act or negligence in executing the orders of his principal, in respect of which he would be liable over to the latter, should he fail in the action, and it is in such cases, that the agent has been held incompetent, by reason of his liability, consequent upon the event of the suit. (1 Greenl. Ev. Sec. 394, 417, 417; 1 Cow. & H. Notes to Phil. Ev. 139-40; Id. 145 to 152; Paley on Agency, 358, 359, 360.) It does not appear that there is any such liability in this case. Agents, as a class, are generally excepted out of the general rule, of incompetency by reason of interest; and in many cases they are admitted, from a principle of public convenience and necessity, to prove the making of contracts, the receipt or payment of money, and other acts done within the scope of their employment, notwithstanding they may have an interest in the contract or act respecting which they are called to testify. (1 Greenl. Ev. Sec. 416, and authorities above cited.)

We conclude that the party, Darragh, was not incompetent to testify at the call of the plaintiff, by reason of his being a party to the record ; nor because of any interest in the event of the suit. However his agency in the making of the contract may incline him to give a version of the transaction most favorable to the plaintiff; or however his feelings may be supposed to influence him to favor that side, that is not the character of interest which disqualifies a witness. It must be a pecuniary interest; and he does not appear to have any such interest, at least none in favor of the plaintiff, in the event of the suit. We are of opinion, therefore, that the Court erred in excluding him • for which the judgment must be reversed, and the cause remanded.

Reversed and remanded.