Reynolds v. Manning, Stimpson & Co.

Eccleston, J., delivered the opinion of this court, Wm. Reynolds, administrator of Alexander Paul, instituted this action of assumpsit, in the Superior Court of Baltimore city, against the defendants, Manning, Stimpson & Co., the present appellees,, to recover money alleged to be-due for work and labor done and materials-furnished, by Paul the intestate, for the defendants. At thejrial four bills of exceptions were taken to the rul-. ingsjj of the co.urt. Three of them present questions in regard to the admissibility of evidence, offered on the part of the plaintiff; and the fourth is based ppop, an instruction given to. the jury, at the instance of the counsel for the defendants.

The first exception shows that Thomas H. Paul was called, by the plaintiff as a witness, to prove that, the work and labor sued for was done by the plaintiff’s intestate. The defendants objected to the testimony of the witness,, ⁵¹⁷ upon the ground that ho was interested in the result of the suit, and caused 1dm to be examined on his voir dire, when he testified as follows: That he was a creditor of the estate of said Alexander Paul, the assets of which estate, including the claim here sued for, were Insufficient for the payment of the debts of the estate. That he had received one dividend two or three years before, and then expected to, get a further dividend of about $900, some $700 of which was dependent upon the result of this suit. That the chief witnesses to prove the claim now sued on, were Miller and Maxwell, who were actually employed in doing the work, and knew its value, and that they had been in attendance as witnesses in the case.

That being- desirous to better themself, he agreed with one Harper, to sell and assign to him, all his interest in, said estate, estimated to be worth $900, as aforesaid, for the sum of $600, and executed to Harper a written assignment to that effect, and received from him two notes in September 1854,. for $300 each, one payable in six months after date, and the-other payable twelve months after date. That said sale was-fair and without conditions of any kind between him and said Harper, that the payment of said notes should depend upon the result of' this suit. Harper paid the witness the amount of the first note, but had not paid the last, which being still in the possession of the witness was produced by him. In reply to a question whether he intended to demand pay merit of the last note from Harper, if the present suit should be decided against the plaintiff, the witness stated that, as he then felt, lie did not intend to do so, but that there never had been any agreement between him and Harper to that effect.

That he had made an absolute transfer of all his interest, and had a legal right to recover the note from Harper; but would not do so, if the suit was lost; and that if there was a recovery in the suit he would make Harper pay the note. That Harper was a journeyman blacksmith, and he was not aware that Harper had any means, or property of any kind, except that arising from his daily labor. At the time he made the ⁵¹⁸ transfer to Harper he told him that he estimated his share of the proceeds of this suit at $700, and that he expected to be a witness for the plaintiff in the suit. On cross-examination, the witness further stated that the intention expressed by him, not to make Harper pay the second note, in case the suit was lost, was certainly his present intention, but that Re might see fit to change the same, and that there was no understanding between him and Harper that could prevent his doing so.

After the statement made by this witness, upon his voir dire, the court decided he was incompetent, on the ground of interest; to which the plaintiff excepted. . In support of the rejection of the testimony of Paul, the reasons assigned in'the notes of the appellees’ counsel are: “He had a direct pecuniary interest in the result of the suit. He was a creditor of the estate. His. claim could not be paid without a recovery in this case. . “It is manifest from his own statement that the assignment to Harper was not bona fide, but a mere contrivance to make himself a witness.

He declared, at the time, to Harper, that he expected to be a witness. He stated upon his voir dire, that he would not make Harper pay the remaining note unless there was a recovery in this suit.” . The ancient rule which excluded witnesses as being incompetent, on the ground of interest, has, at a later period, been much relaxed; the later decisions manifesting, very clearly, an inclination in the courts, to consider the objection as going to the credit and not to the competency of the witness, unless the interest is shown with clearness and certainty. To render him incompetent the interest must be legal, certain and direct, not possible only, not remote, probable or doubtful.

This subject has been fully considered by this court, in Melvin vs. Melvin, 6 Md. Rep., 541 , where many authorities are referred to and examined. See, also, M’Ilroy & another vs. M’Ilroy & another, 1 Rawle, 433 . A witness is not incompetent because he considers himself under an honorary obligation, respecting the matter in contro? versy in favor of the party calling him; nor will his mere belief ⁵¹⁹ that he has an interest in the controversy, exclude him. How far his credibility may bo affected by such matters the jury are to decide. 1 Greenlf. on Ev., sec. 388, Stimmel vs. Underwood, 3 G. & J., 288 .

The objection to the witness in this case, on the ground of interest-, is alleged to be a valid one, because the assignment of his claim to Harper was not bona fide, but merely a contrivance to make himself a witness; and therefore he has a direct pecuniary interest in the result of this suit. That the assignment was only a contrivance for such purpose, is said to be manifest, because the witness declared, at the time, to Harper, tiiat he expected to be a witness, and stated upon his voir dire, that he would'not make Harper pay the remaining note unless there was a recovery in this suit. The only evidence on the subject is the statement of this witness on his voir dire. It is true, he says, he sold and assigned his claim against the estate of the plaintiff’s intestate, estimated to be worth $900 (some $700 of which was dependent upon the result of tills suit) for $600, to Harper, and received from him two notes for $300 each, one of which has been paid, and the other not.

That he does not intend to demand payment of the remaining note if the present suit be decided against the plaintiff. But, at the same time, the witness says the sale was fair, and without any conditions between him and Harper that the payment of the said notes should depend upon the result of this suit. That he had made an absolute transfer of all his interest, and bad a legal right to recover the note from Harper, but would not do ’so, if this suit was lost; and that if there was a recovery in this suit he would make him pay. On cross-examination, he says, also, it is his intention not to make Harper pay the second note, in case this suit is lost, but that he may see fit to change the same, and that there was no understanding between him and Harper that could prevent his doing so.

In Pegg, et al., vs. Warford, 7 Md. Rep., 582, issues were sent from the Orphans Court to try the validity of two wills. The caveatee, in support of the issues on his part, ⁵²⁰ offered to swear Rachael J. Warford as a witness, who was a legatee or devisee under both wills, and the caveators objected to her competency on the ground of interest. To show her competent, the caveatee produced two deeds executed by her. One of them professed to convey to her brother, Hamilton Warford, in consideration of natural love and affection, all her interest, “under either of the wills.” The other deed, after reciting that doubts' had been expressed as to the efficacy of the preceding deed to Hamilton Warford, to pass all the interest the grantor had under both wills, and her desire to divest herself of all and every interest in or thereafter to accrue to her under both wills, and each and either of them, “so as to render her a competeht Witness in relation to both said instruments,” conveys to P. W. Bruñe, in consideration of the premises and the sum of five dollars, all the grantor’s interest under said wills, and each and either of them, subject to the legal effect of said deed to Hamilton Warford.

The objection to the competency of the witness was overruled in the court below. In deciding this question, on the appeal, the court say: “It was, with some show of reason, contended that those deeds, Shaving been made merely to restore the competency of the Witness, and not being bona fide conveyances, are to be regarded as a fraud upon the- law, and, therefore, not effectual to accomplish the purpose intended. Though we have no doubt that such Was the design of this transaction, still this court cannot assume as a legal fact, as the case is now ,presented, that the deeds in question were not executed in good faith. But whether they were or were' not, they are sufficient forever to conclude the grantor from assailing them upon any such ground, and for this reason, her divestiture of all interest under these testamentary papers, may be said to be complete, by virtue of the deeds in question, and, therefore, she is a competent witness.” If we are to be governed by this decision, and the rules previously stated, relating to the interest requisite to render a witness incompetent, we do not think the evidence in this ■cause is sufficient to sustain the court below in having ⁵²¹ rejected Baal as a witness.

His legal interest, if any, was at, least doubtful-, remote and contingent. If he has any direct interest in this suit-, it seems, from the testimony, to depend upon an honorary obligation. The case of Crawford vs. Brooke, 4 Gill, 213 , was referred to in Pegg, et al., vs. Warford, but the court did not think the principle settled in the former case was in conflict with the views expressed in the latter. Nor do we consider it inconsistent with the decision in this.

There the first exception shows that the assignor of the account sued upon, was called as a witness to prove the services charged; and also to prove the -acknowledgment thereto! b'y the debtor-, so as to take the claim out of the operation of the statute of limitations. The witness was objected to, but the objection was overruled. In the second exception-, it appears that upon the cross-examination of this witness, the defendant’s counsel asked whether the assignment was not made by him because the account was barred by limitations; and for the purpose of making himself a witness to prove the rendition of the services, and the acknowledgment and promise by the defendant’s intestate; the counsel stating that the question was asked for the purpose of showing that the account had not been bona fide assigned. The plaintiff’s counsel having objected to the question, the court sustained the objection.

The decision in the first exception was affirmed, in the Court of Appeals, but that in the second was reversed. In that case, it was not decided, on either exception that the assignor was incompetent as a witness. In regard to the second exception, it was held that, under the pleadings, it was competent for the defendant to prove that the account in question had not been bona fide assigned, as required by the Act of 1829, ch. 51, under which the suit had been instituted, in the name of the assignee. It was also held that the assignor, having been offered and examined as a witness to sustain the claim , the court below should have permitted the question to have been asked, which the defendant’s counsel proposed to ask.

The appellate court being ⁵²² of the opinion that an assignee could not maintain a suit in his own name, under the Act of 1829, if it be shown that the assignment was made for the purpose of rendering the assignor a competent witness to prove the correctness of the assigned claim, and the liability therefor by the defendant, or whenever it is shown, by proof, that the assignment is not bona fide: There the question was whether, under the Act of 1829, ch. 51, which authorizes a suit to be brought in the name of an assignee upon a claim bona fide assigned, could maintain a suit in his own name, upon a 'claim held by him under an assignment not bona fide. The cause of action in the present suit has never been assigned. And the question in reference to the incompetency of Paul as a witness, upon the ground of interest, based on the allegation that the assignment of his claim was not bona fide, is a very different question from that arising under the second exception in Crawford vs. Brooke. When there exists such an interest as should disqualify the possessor thereof from testifying in relation to matters connected therewith, if, with a view of becoming a witness, he assigns his interest, although such is the purpose of the assignment,