Millett v. Parker, &C.
| Decision Date | 17 February 1859 |
| Parties | Millett vs. Parker, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HENDERSON CIRCUIT COURT.
JAS. HARLAN and T. A. MARSHALL, for appellant.
HUGHES & DALLAM, on same side.
CROCKETT & VANCE, for appellees.
JOHN M. HARLAN on same side.
W. B. Vansant and W. L. Parker were partners as brickmasons in the town of Henderson. They dissolved their partnership in 1856, and Vansant having purchased Parker's interest in the concern, agreed to pay all the debts against the firm. He also agreed to give to Parker a bond with good security, that he would perform his part of the contract, and save him harmless from any violation thereof. In fulfillment of this latter stipulation he delivered to Parker the following instrument:
Some of the creditors of the firm of Vansant and Parker filed their petitions in equity, in which they set forth the dissolution of the firm, and alleged that by the terms of the dissolution Vansant was to pay all the debts of the firm, and had executed a covenant, with Millett as his surety, that said firm debts should be paid. They also alleged that Vansant and Parker were insolvent, and on that ground they claimed the right, by substitution in equity, to look to Millett, and hold him responsible for the payment of their debts.
Millett, in his answer, admitted the signing of the covenant as the surety of Vansant, but alleged that he had signed it upon an express agreement between him and Vansant, that it was also to be signed by one R. G. Beverly as an additional surety, "and that the paper was handed back to Vansant for the purpose only, and with the express stipulation and condition to be taken by him to said Beverly to be executed by him, and was not to be a covenant or obligation at all upon this defendant until that was done." He also alleged that he had not delivered said writing to Parker, or authorized its delivery to him in its present condition; and that he believed, and so charged, that Parker knew of the manner and condition upon which the defendant's signature was procured.
The defendant, Millett, in order to sustain this defense, took the deposition of his co-defendant, W. B. Vansant, who testified that the paper in question was signed by Millett upon the express understanding and condition that R. G. Beverly was also to sign it, and that unless he did sign it the witness was not to deliver it to Parker, nor was it to be binding on Millett. He also testified that he did afterwards deliver it to Parker, without the knowledge or consent of Millett, and without having obtained the signature of Beverly; but he did not state that Parker was apprised or had any information of the agreement between Millett and the witness.
The plaintiffs excepted to the deposition of Vansant, and the exception was sustained by the court. And as Millett had no other evidence to rely upon to support his answer, judgments were rendered against him in favor of the several plaintiffs, and he has appealed to this court.
The first question that arises on the appeal is that which involves an inquiry into the competency of Vansant as a witness in favor of his co-defendant.
The fact that he was a party to the action did not render him incompetent as a witness, that disqualification having been removed by the provisions of the Civil Code. Before the adoption of the Civil Code, the principal obligor, who was not a party to the action, could be made a witness for his co-obligors, who were his sureties in the bond sued upon, by being released by them from all liability for the costs that might be recovered against them. As the principal obligor was not a party to the action, he was only liable for the demand sued for; but if a recovery was had against his sureties, he would be liable to them, not only for the amount of the demand sued for, but also for the costs of the action. For this reason he was regarded as interested, and not competent to testify for them unless they released him.
Where, however, as in this case, he is a party to the action, a judgment against the surety could not increase his liability, inasmuch as the judgment would have to be against both of them, and his responsibility to his surety and to the plaintiff would be precisely the same. He, therefore, would not have any interest in the result of the action arising from his supposed liability over to his surety, and would not be incompetent on that ground, even if he were not released by the surety; but as such a release was executed, all objection to his competency on that ground was fully removed.
It is however contended that he had an interest in defeating a recovery by the plaintiff against the surety, as such a recovery would increase the amount of costs for which he would be liable in the action to the plaintiff, and for that reason his deposition was properly excluded.
All persons are competent to testify in a civil action, so far as their competency depends upon the question of interest, who are not parties to an issue, or interested in the issue. (Civil Code, sec. 669, 670.) The witness in this case was not a party to the issue between the plaintiffs and Millett, nor was he interested in that issue. The decision of that issue could not affect his liability to the plaintiffs, but it would remain the same, whether the decision was in favor of, or against his co-defendant.
It is however contended, that although he was not interested in the issue itself, his interest might be affected by its result, for if it were decided in favor of his co-defendant, the costs for which he might be rendered liable in the action would be thereby diminished.
This ground of interest, however, was very uncertain, and depended on several contingencies. In the first place, the witness himself might succeed in the issue he had made with the plaintiffs; and if he did, he would not be liable for any of the plaintiffs' costs; and in the next place, if a judgment were recovered against him, he would be liable to the plaintiffs for the whole costs of the action, unless some part of them had been incurred exclusively in relation to the trial of the issue with Millett. If the plaintiffs should not take any depositions to be read on that issue, nor incur any other costs but such as were incident to the whole action, then the liability of the witness, so far as the costs of the action were concerned, would, in the event that a judgment was recovered against him, be the same whether his co-defendant Millett succeeded or was defeated in his issue with the plaintiffs. If, therefore, he had any interest in the result of the issue between the plaintiffs and his co-defendant, it was an interest that was wholly contingent and uncertain.
The rule is, that a remote, uncertain, or contingent interest, does not render a witness incompetent, but only goes to his credibility. We are therefore of the opinion that the circuit court erred in rejecting the deposition of Vansant.
If, however, the plaintiffs were entitled to judgments against Millett, notwithstanding the testimony of this witness, then the judgments should not be reversed, merely for the error in rejecting a deposition, which, if it had been admitted, would not have had the effect of preventing a recovery by the plaintiffs. It therefore becomes necessary to decide, whether the facts proved by the witness were sufficient to exonerate the surety from all liability on the paper upon which the actions were founded.
On behalf of the appellant, it is argued that the paper in question was merely an escrow, and as the condition upon which its delivery to Parker was made to depend was not complied with, the instrument was not fully executed, and consequently was not obligatory on the appellant.
An escrow is defined to be a writing delivered to a third person to hold, until some conditions be performed by the grantee, or the person to whom it is to be delivered, and is not to take effect till the conditions be performed. (2 Black. Com., 307.)
But...
To continue reading
Request your trial