85 Ky. 320 | Ky. Ct. App. | 1887
delivered the opinion op the court.
This case has been heretofore in this court, once on the appeal of Miller’s administrator, and once on the appeal of Worthington, and is now here for the third time. The action was instituted by the administrator of Miller on the following obligation : “Une John I. Miller, two hundred and thirty-five dollars and forty cents. James Whipps & Co.” The action being against the firm of James Whipps & Co., the petition alleging that James Whipps and Henry Worthington were members, and that Wilcox, the other member, was dead or had retired
When the case was here on the appeal of the administrator of Miller, it was held that Whipps, being sued .as a member of the firm, was incompetent to testify as to the jiayment by him to the intestate, and a reversal on that account was had. When it went back there was a judgment against Worthington and James Whipps that was brought here on Worthington’s appeal, and reversed on account of an erroneous instruction.
Whipps did not appeal, but the supersedeas was ex•ecuted by Worthington, and the case sent back, the judgment being reversed, leaving, as Worthington contends, the judgment in full force as to Whipps, but reversed as to him, Worthington.
On the return of the case Worthington offered •Whipps as a witness to prove payment, insisting that the latter was no longer a party to the action, and had no interest in the result. The court refused to permit the witness to testify, and this is the error complained •of.
Whipps was insolvent, and, therefore, was not par".ticularly interested in the result. Whether solvent or
The firm is the party defendant to the action, and no-member of it can testify as to transactions with the-decedent so as to absolve the firm from its obligation. There was no error, therefore, in refusing to permit the witness to testify.
Judgment affirmed.