Klockenbaum v. Pierson

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. [162]This is an action brought by the plaintiff upon a promissory note executed by Pierson, Bliss, Thompson, and McDuffie, as the makers, and Kimball as indorser. Bliss, Thompson, McDuffie, and Kimball defend the action, claiming that 'the note was made for Pierson’s benefit, and that they were only sureties and indorsers for him, and that the plaintiff, instead of being a purchaser of the note, paid the same for Pierson, under a promise from Pierson that he would give him a new note with the same persons as sureties. Judgment was rendered in favor of Bliss, Thompson, McDuffie, and Kimball, against the plaintiff, who moved for a new trial, which was denied, and he takes this appeal from the judgment and the order overruling the motion for a new trial.

On the trial the defendants offered one C. B. Kimball as a witness, and plaintiff objected to his testifying on the ground that an attachment had been issued in the action, and a bond had been given to release the property from the attachment, and the witness was one of the sureties on that bond, and therefore interested. The defendants then applied to the Court for leave to substitute another surety on the bond in place of the witness. The .Court refused to allow the substitution, but permitted the defendants to deposit with the Clerk the full amount of the bond in lieu thereof, and then permitted the witness to testify, to which the plaintiff objected and excepted, and this is the first error assigned. A witness who is rendered incompetent because of his being surety on a bond given in the action, as in the present case, can be rendered competent, either by substituting another surety, or by deposit of a sufficient sum of money. (1 Greenl. Ev. Sec. 392, note 3, 430, citing numerous authorities; 3 Phillips’ Ev. C. H. & E.’s Notes, 38,note 629.) The money deposited in Court is certainly a better security to the plaintiff than any bond could be. There was no error in this action of the Court.

The next assignment of error is, that the Court erred in finding as a fact that the plaintiff paid the note for Pierson instead of purchasing it, and that this finding is contrary to the evidence. There seems to be sufficient evidence to sustain the finding. The evidence is not very clear or positive whether the money paid by the plaintiff was by the way of payment or a purchase, but we think it preponderates in favor of the finding, and we shall not disturb it.