Bigham v. Carr

• Decision Date: 01 January 1858
• Citation: 21 Tex. 142
• Parties: SAM'L E. BIGHAM & M. S. MCCALL v. JNO. F. CARR.
• Court: Texas Supreme Court

21 Tex. 142

SAM'L E. BIGHAM & M. S. MCCALL

v.JNO. F. CARR.

Supreme Court of Texas.

1858.

A partial payment of purchase money after the time fixed for the completion of the sale of land had passed, and a still later application by the purchaser for indulgence, held, to show that time was not of the essence of the contract.

The interest in the event of a suit which disqualified a witness, must be a legal, fixed, and certain benefit. 13 Tex. 373.

A creditor has a substantial interest in a recovery by a debtor, if he look to the proceeds of the judgment for payment; but is not disqualified as a witness, unless he had a specific lien on the judgment when rendered.

A promise to give the witness an order for the amount of the judgment when rendered does not render him incompetent. Aliter. If an order had been given.

The tendency of modern decisions and legislation is, that interest goes to the credibility and not to the competency of a witness.

Statements made by an agent to the prejudice of his principal, after his agency had ceased, cannot be given in evidence. 28 Tex. 420.

Evidence cannot be heard to impeach the credibility of a witness, unless the foundation for this purpose is first laid by interrogating the witness as to the particulars of what he had stated about the special matter in reference to which it is sought to contradict him.

Appeal from Polk. Tried below before the Hon. J. M. Maxcey.

Samuel E. Bigham and Moses S. McCall instituted suits against the appellee, John F. Carr, severally, upon two separate promissory notes for $500 each, in defense to which Carr set up a contract entered into between him and the appellants, by the terms of which he agreed to sell them certain parcels of land therein described, and for which they agreed to pay the sum of two dollars per acre. He tendered in court a deed and prayed judgment for the balance due on said contract. He further stated in his answer, that after the making of said contract, to wit: in the month of April, 1854, the contract having been executed in February preceding, the appellants each paid him the sum of five hundred dollars, making in the aggregate $1,000, as a part payment for the land, for which he executed to each of them his promissory note for $500, they being the notes sued on. Carr also brought a separate suit on his contract against Bigham and McCall. The suits were consolidated. On the trial the appellee offered as a witness one Dewalt, to whose competency the appellants objected, and to sustain their objection introduced a witness who swore that he had heard Dewalt say that “he was making a trade with Bigham and McCall for Carr, and that if the trade was made he would get $1,000 from Carr.” The objection was overruled and the witness sworn, to which appellants excepted. This witness proved the transaction substantially as set out in the answer of the appellee. Another witness, Singletary, proved that he heard Bigham in April, 1854, ask Carr for some indulgence on the purchase money, to which Carr assented upon conditions. There was judgment for appellee, and appeal.

J. W. Lemmons, for appellants.

B. C. Franklin, for appellee.

HEMPHILL, C. J.

The cause has been argued in this court as if both the parties against whom was judgment had appealed. But the appeal bond was not signed by McCall; and the defendant, Samuel E. Bigham, must be regarded as the sole appellant. Nor is there any authenticated statement of facts in the record. There is a paper purporting to be such statement, but it is not signed by the attorneys of either party, or by the judge. The defect was not noticed by the counsel, who have submitted arguments evincing much and careful research, except by a single remark of counsel for appellee, that it does not appear that all the testimony given in the cause is embraced in the record. But as some attention had been given to the cause before the discovery of that defect in the statement, I will proceed to consider some of the more important points assigned for revision.

The first ground of error in overruling the exceptions of Bigham and McCall cannot be maintained. The contract furnishes no internal evidence that the time of its performance was an essential condition. That the sale of the land, on the one hand, and the purchase on the other, are the material parts of the transaction. Some of the lands were not patented at the time of the sale; and the partial payment (in effect) by the defendants, of a part of the purchase money, after the time fixed for the completion of the sale had passed; and the still later application of Bigham for further indulgence, show that time was not regarded by the parties as vital, and there was no error in overruling the demurrer. 14 Tex. 373.

The second assignment is the overruling the objection of Bigham and McCall to the admissibility of testimony of Dewalt and permitting him to testify.

Before the witness took the stand testimony was introduced for the purpose of showing that he had an interest in the event of the suit. From the statement of facts, it appears that but one witness offered for this purpose, who stated that he was told by Dewalt that he was making a trade with Bigham and McCall for Carr; and that if the trade was made he would get a thousand dollars from Carr, and would pay the witness what he, Dewalt, owed him. This is the whole of the evidence of that witness, as appears from the statement of facts; but in a bill of exceptions there is...