Foley v. William Mason & Son ex rel. Birckhead

Mason, J., delivered the opinion of this court. This is an action of trover, to recover the value of certain goods alleged to be illegally held by the defendants. The plaintiffs’ whole case rests upon the testimony of the two Messrs. Mason, who are the legal plaintiffs upon the record.

These witnesses were objected to, and if their testimony is deemed inadmissible, the plaintiffs have no case in court. As a general rule, the legal plaintiff on the record, is not a competent witness to prove any issue in the pending controversy. The legal plaintiff in all cases is, prima facie, liable for costs equally with the equitable plaintiff, which circumstance of itself is sufficient to beget such an interest in the controversy, as to disqualify him from giving evidence against the defendant. It is not to be denied, however, that a party under such circumstances may be so far divested of that interest, as to be made a competent witness, and the point in this case is, does the record disclose that the Masons have been so far discharged from their liability for costs, as to-qualify them to give evidence?

We think not. In the case of William Mason the elder, who was called-' on behalf of the plaintiffs, he was sworn, as the record says, (upon his evidente being objected to by the defendants,) upon his voir dire, at the instance of the party offering him as a witness. To the propriety of which the other party, the defendants, objected. It has been insisted, that the first exception in its present form, does not properly present the question as to the correct ⁴⁸ ness of allowing this witness to be sworn-on his vóir diré, at the instance of the party calling him,.

As the case will go' back upon procedendo, without deciding whether the exception raises the question or not, we will take the occasion to' say, that the right to swear a witness upon his voir dire, clearly belongs to the party objecting to his testimony, and’ hence it was error in this instance to permit the plaintiffs, who offered the witness, to do so. The objection to William Mason, Jr., as a competent witness, was well taken and ought to have been sustained. In his case there was no effort to divest him of his interest in the suit, by reason of his being the legal plaintiff on the record, nor no attempt, (except the offering of the discharge undef the insolvent laws,} to show such an absence of interest as to authorise the witness to testify. We have no difficulty in reversing the court below upon this exception.

As it is possible that the plaintiffs may, upon another trial, qualify these' witnesses to give evidence, or may prove the same' facts by other competent witnessés, we will proceed to express our view's upon the case as presented by the record, as if the same had been disclosed by legal and competent proof.- The case thus made, is this:- The defendants below purchased from the Messrs. Mason, a quantity of cotton duck, for cash, which was delivered without any demand for payment at the time, and without any express conditions. A few days afterwards, the defendants upon having payment demanded by the Masons, offered to pay them in part with their own notes, over-due, and the balance in money. This offer was several times' repeated', before the suit was brought, and' as often declined by the' Masons upon the ground of its not being a compliance'with the terms of the sale, which was a sale for cash.

In addition, the witness stated, “that when’ he sells for cash, he delivers the article without the cash, if he considers the purchaser good for the money and honorable, that this is the custom, the usage; and that the right to’ the cash was’not waived by the delivery.” ⁴⁹ We will proceed to express our views upon the case as íhus made in general terms, without referring in detail to the several prayers or exceptions in the order in which they are presented by the record. Although the sale was for cash, yet if the delivery of the goods was made unconditionally and without fraud or mistake, the title to the goods thereby became vested in the vendees, notwithstanding the cash was not in fact paid, and of a consequence this action could not be maintained if the case rested here. But it is said by the appellees, that the delivery cannot be regarded as unconditional, inasmuch as there was evidence that there existed among the merchants of the city of Baltimore an usage, “to deliver merchandise sold for cash, without receiving the cash simultaneously with the delivery, and without the vendors thereby waiving the right to the cash,” and that this usage must be regarded as having entered into, and formed part of this contract. For this principle the case of Powell & others, vs. Bra dlee 9 Gill & Johns., 220, is relied on. in many particulars the two cases are strikingly alike, but in others they are wholly dissimilar, as we shall presently attempt to show.

The theory of the law of usage rests upon the presumption, that in certain transactions the parties did not intend to expressly stipulate the whole of the contract by which they designed to be bound, but that they intended to contract with reference to the known u'sages upon the subject, and that those usages were to be regarded as part of the contract. And although evidence of usage is sometimes admissible to add to, or to