Andrews v. Hayden's Adm'rs

• Decision Date: 20 April 1889
• Citation: 88 Ky. 455,11 S.W. 428
• Parties: ANDREWS v. HAYDEN'S ADM'RS.
• Court: Kentucky Court of Appeals

11 S.W. 428

88 Ky. 455

ANDREWS v. HAYDEN'S ADM'RS.

Court of Appeals of Kentucky.

April 20, 1889

Appeal from circuit court, Nelson county; W. E. RUSSELL, Judge.

To be officially reported.

Action by L. C. Andrews against R. B. Hayden's administrators on a promissory note. Judgment for defendants. Plaintiff appeals.

John W Lewis and George S. Fulton, for appellant.

John D Wickliffe, for appellees.

PRYOR J.

This action was instituted in the court below on a note for $2,385, purporting to have been executed by R. B. Hayden in his life-time to the appellant, Andrews, and, Hayden being dead, is presented against his personal representatives. The administrators declined to pay the note, and have pleaded non est factum and a want of consideration, and, on the trial, the law and facts having been submitted to the judge, a judgment was rendered for the defendants on both issues. The errors complained of consist in the admission, as appellant contends, of incompetent testimony, and in refusing to allow the appellant to testify as to the real consideration; the obligor, Hayden, being dead.

On the plea of non est factum, the burden rested upon the appellant to show the execution of the note by the appellees' intestate, and, having the burden on that issue, the court held that the plaintiff should conclude his evidence as to both defenses before the defense was called on to make good the defense of no consideration. While, on the trial of a case presenting several issues that if tried singly would shift the burden, the court must necessarily be given much discretion in prescribing the order of proof, as a general rule the plaintiff, on whom the burden is cast on the issue vital to the recovery, will be required to conclude the entire case on all the issues. Cases, however, may arise where the affirmative of an issue rests with the defense; and to require the plaintiff to first establish the affirmative proposition essential to his recovery, and then to negative the defense, would in some cases work much hardship to the plaintiff, and to obviate this dilemma in which he has been placed by the defense he should be allowed to introduce testimony by way of rebuttal, although in chief, on the issue, when the burden, if this were the only defense presented, would be on the defendant. In this case, the appellant having introduced testimony conducing to show the execution of the note by the intestate of the appellees, the note itself, if genuine, was prima facie evidence of a consideration. He could not well anticipate the character of testimony that would be introduced by the defense to show a want of consideration, and therefore when the defense rested on that issue testimony in rebuttal was competent although in chief.

But has the appellant been prejudiced by the ruling of the court below on this question? The testimony of the appellant was offered with a view of showing the transaction between himself and the dead man, with a view of fixing a liability on his estate. Such testimony was incompetent, for the reason that the obligor, being dead, cannot testify to transactions that took place between himself and the witness, who is the plaintiff, and seeking to charge his estate. The provision of the Code so often referred to in other cases makes the plaintiff in such a case an incompetent witness. The appellant was given the widest range in the attempt to...