CORDER v. TALBOTT.

• Decision Date: 30 November 1878
• Citation: 14 W.Va. 277
• Parties: CORDER v. TALBOTT.
• Court: West Virginia Supreme Court

14 W.Va. 277

CORDER

v.TALBOTT.

Supreme Court of Appeals of West Virginia.

Decided November 30, 1878.

1. If in a common law suit the court rejects improperly evidence offered by the defendants, and the jury find a verdict for the plaintiff, such verdict should be set aside on a motion by the defendant for a new trial, even though the court may believe, that the verdict of the jury ought not and would not have been different, had the rejected evidence teen considered by the jury; but a different rule prevails in the: trial of issues out of chancery.

2. The declarations of a party in his own favor ought not to be re-ceived as evidence, though it be a part of the res gestse of a collateral fact introduced in the case merely to contradict a witness on the other side, but which fact is in no way otherwise connected with the material enquiry involved in the case.

3. When the declarations are merely a narrative of a past occur-rence, though made ever so soon after the occurrence, they ought not to be received in evidence, they being in such case no part of the res gestse.

4. Where the declarations do not explain, illustrate or character-ize a fact, but are offered merely to establish the existence of the fact, or to strengthen other proof of the existence of the fact they are not admissible in evidence as part of the res gestx.

Supersedeas to a judgment of the circuit court of Barbour county, rendered on the 19th day of November, 1875, in an action of debt, in said court then pending, wherein James W. Corder was plaintiff, and Elam D. Talbott was defendant, granted on petition of said Talbott.

Hon. John Brannon, judge of the sixth judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

On March 4, 1871, James W. Corder sued out of the clerk's office of the circuit court of Barbour county a summons against Elam D. Talbott to answer a plea of debt for $1,000.00, which writ was returnable to March rules, 1871. The declaration was then filed, which was in the usual form of a declaration on a bond for $1,000.00, executed by one J. P. Thompson and the defendant Elam D. Talbott, dated. October 3, 1868, and payable one day after its date. The bond was a joint and several bond; and the declaration alleged, that John P. Thompson had confessed judgment on it on Jany. 30, 1871, but had never paid any part thereof.

At the first term of the court the defendant pleaded payment; and issue was joined. This was a mere formal plea, to set aside the office judgment. The real defense made by the defendant to this suit was, that he had never executed the bond sued on. The plea of non est factum was filed October 17, 1872, to which the plaintiff replied generally; and issue was joined thereon.

The first jury, who tried this issue, were unable to agree, and were discharged by the court. The next jury sworn to try this issue found a verdict for the plaintiff for the whole debt and interest, as claimed in the declaration.

A motion for a new trial was made and overruled; and a bill of exceptions taken to the action of the court, which on November 20, 1875, rendered a judgment for the plaintiff in accordance with the verdict of the jury.

During the trial of the cause the defendant took a bill of exceptions which was as follows:

"Be it remembered, That upon the trial of this action, after the defendant, Talbott, had testified that he had not signed his name to the writing obligator)' in the cleelara-g] tion mentioned, and what purported to be his signature was not his signature, he stated that John P. Thompson had called on him and asked him to go his security to the plaintiff for $1,000.00, and that he refused to do so; that he, the defendant Talbott, then resided about a mile from Phillippi, on the Webster road; that he was in his yard, and he did not recollect, whether Thompson got off his horse or not, or remained at the fence and gate; and stated in reply to a question that his family consisted of his wife and small children, and a girl who lived with them at the time said Thompson so called on him, named Emma Poling; and then the said Emma Poling was introduced as a witness, who proved that some time in the fall of the year 1868, John P. Thompson came to the house of the defendant, Talbott, where he lived on said Webster road, and said Thompson and and Talbott had a conversation at the fence and gate, about thirty yards from said Talbott's house; that witness did not hear any part of said conversation, except that she heard said Talbott say to said Thompson " I CAN'T;" that said Thompson separated from said Talbott and started off; that said Talbott immediately returned to his home from said fence or gate, and said Thompson got out of his hearing; and the counsel for Talbott proposed further to prove by the witness that upon his entering the porch of the house, Mrs. Talbott, the wife of defendant, asked him what said Thompson wanted, and that defendant, Talbott, replied that said Thompson wanted him to go upon a note with him, Thompson, to the plaintiff, Corder, for $1,000.00, and that he, defendant, had refused to do so; and the plaintiff's counsel objected, and the court refused to allow the counsel of defendant, Talbott, to prove by the; said witness the reply of the said Talbott to his wife, to the effect proposed by him, to which ruling of the court the defendant, Talbott, by his counsel, excepts, and the exception is here; signed and sealed and ordered to be made a part of the record."

The bill of exceptions to the action of the court in "overruling the motion for a new trial sets forth the evidence given at the trial. The plaintiff produced the bond sued upon and proved by himself, that Thompson before the execution of this bond came to his house and proposed to borrow $1,000.00. That'on the 3d of October, 1868, he told him he would lend him the money, if Talbott, the defendant, would go his security. That he knew Talbott was at home that day, as he had seen him in passing by his house. That on being told he could have the money, if Talbott would go his security, Thompson rode off in the direction of Talbott's house, and after he had been absent about long enough to go to and return from Talbott's house, he returned with the bond sued on and got the $1,000.00.

He testified further, that he had loaned Thompson before that small sums of money not exceeding $200.00 or $300.00 without security; that Talbott before that had gone security for two sums of $500.00 each, which he lent him, one of which had been paid in whole and the other partially, when this $1,000.00 was loaned him; that when Thompson confessed the judgment for the $1,000.00, he had fully paid off the remaining portion of the $500.00 loaned him, but he had not informed Talbott of it. It had been paid off in February, 1869; and after that he had no debt against Thompson except this $1,000.00; that Thompson in Corder's presence told Talbott, he had confessed this judgment, and asked, if he could not let it rest awhile, Talbott said his child was sick or dying, and he could not talk to them; that before that, when Confer first mentioned rhe confessing of this judgment to Talbott, and asked him what he should do, if he should issue execution on it, he replied, he; should proceed according to law; that prior to January, 1S71, he had urged him to draw all the money from Thompson he could, as times were squally, or becoming so; that on one occasion, when some money was paid to him, Cordei, for Thompson, Talbott asked, if it was on any debt, on which he Talbott was liable, and was told a part of it t was. He said also, he was well acquainted with Talbolt's signature, and had seen him write; and he believed his signature to the $1,000.00 bond was genuine.

Thompson testified to same statement of facts relative to the loaning of the $1,000.00; that after he agreed to loan it in Phillippi, he, Thompson, got on his horse and rode out to Talbott's house, about a mile from Phillippi, and when he got there, Talbott was in his office up-stairs; and he went into his office and asked him to sign this $1,000.00 bond. He said he did not like to do so; that he was already security for him enough. But Thompson told him, that one of the $500.00 bonds he had signed was paid off, and a part of the other, that he was going to Baltimore, and when he returned, he would pay off the balance of the other $500.00 bond; and then Talbott signed the $1,000.00 bond in his presence with a quill pen. That he was in the habit of going his security, and after this $1,000.00 bond was executed, he went his security to others in two sums of $500.00 each.

Another witness for the plaintiff testified, that in August or September, 1870, he asked Talbott, if he knew Corderhad Thompson's note for $1,000.00 with him as security, which was unpaid, and that Thompson was much embarrassed and asked him, if he had any security for it. He said he had no recollection of being on any $1,000.00 note, but that he was on two notes one ol $500.00 and another of $400.00. He said he would go and see Corder about this $1,000.00 note and satisfy himself about it. About a month after, he said, he had seen him. The witness's recollection is, that he said he had seen him, Corder, and it was all right, and the witness need not give himself any further trouble about it. Just before this suit was brought he, Talbott, examined this note, which was in witness's hands for collection as a lawyer, and said he had never signed it. He knew Talbott's handwriting well, and believed this was his signature to the bond.

A brother-in-law of both Talbott and Thompson also "testified, that he was acquainted with Talbott7s signature; and if this bond had been presented to him, he would not have hesitated to take it as Talbott's bond.

The defendant Talbott testified, that when Thompson rode out to see him to get him to go on this $1,000.00 bond, Thompson either remained on his horse, or got off...