Hogan v. Sherman

• Decision Date: 12 May 1858
• Citation: 5 Mich. 60
• Court: Michigan Supreme Court
• Parties: Thomas Hogan and James Carson v. Abner Sherman

5 Mich. 60

Thomas Hogan and James Carson v. Abner Sherman

Supreme Court of Michigan

May 12, 1858

Heard May 11, 1858

Error to Wayne Circuit.

The case is sufficiently stated in the opinion of the court.

Judgment reversed, and new trial ordered.

Wm Gray and S. Larned, for plaintiffs in error:

The written admissions of the plaintiff should have been received. When they were offered, there was no evidence of ownership in any other person. We concede the rule, that after an assignment, the assignor can not make admissions which impair the rights of his assignee; but, it must first appear that there is an assignee--some one whose admissions are evidence: Chisholm v. Newton, 1 Ala. 372; 1 Greenl. Ev., § 172; Campbell v. Day, 16 Vt 558.

The deposition of Sherman was inadmissible under the affidavit made by Carson: Way v. Billings, 2 Mich. 397. Whenever the knowledge of a witness is such as to render his testimony to a fact competent, he has knowledge of the fact, and it is immaterial whether he acquires the knowledge by sight, touch, or hearing. A witness will not be allowed to testify to a fact he does not know, but he is permitted to prove the fact by the admission of the party in interest; such admission gives him knowledge of the admitted fact.

Towle, Hunt & Newberry, for defendant in error:

The written paper signed by Sherman, was properly ruled out. An admission can only be made by the party who has an interest in the subject matter to be affected by it; but this paper itself shows that Sherman had parted with all his interest in the note sued upon. Admissions made by the assignor, after the assignment, can not avail against the assignee, and courts will protect the latter against all the acts of the former: 1 Greenl. Ev., §§ 172, 173; Welch v. Mandeville, 1 Wheat. 233; Hough v. Barton, 20 Vt. 455; Dazey v. Mills, 5 Gilm. 67; Frear v. Evertson, 20 J. R., 142; Hackett v. Martin, 8 Greenl. 77.

The deposition of Sherman was properly ruled out. It does not give any evidence as to the particular fact set out in Carson's affidavit. That fact was a single one, to wit: that the note was given for money lost at gaming. As to that, Sherman swears that he does not know anything about it, but he does know another fact, to wit: that Westbrook had told him certain things. Now, proof of this fact, to wit: that Westbrook had told him those things, might in a proper case be admissible in evidence against Westbrook, as showing that he, the party in interest, had made admissions. But an admission is itself a fact. Inasmuch as the affidavit did not set forth this particular fact, Sherman could not lawfully be examined in relation to it: McBride v. Cicotte, 4 Mich. 486 to 494.

The deposition was inadmissible, for the reason that it showed on its face that the exact facts set forth in the affidavit could be proved by Westbrook. Though interested, he could have been compelled to testify under the statute.

Campbell, J. Manning and Christiancy, JJ. concurred. Martin, Ch. J. did not sit in this cause.

OPINION

Campbell J.:

Sherman, the defendant in error, brought an action against Hogan, as maker, and Carson, as indorser, of a due-bill, not negotiable, made payable to Sherman, and obtained judgment in the Circuit Court.

Upon the trial in the court below, the plaintiff introduced evidence of the signatures of the defendants, and rested. The defendants then offered in evidence a paper signed by Sherman, the plaintiff below, and entitled in the cause, of the following tenor: "I admit and certify that I have no property or interest in the promissory note declared upon in the above entitled cause, and that I never had any. That about the time it was given, I was aware that the defendant Hogan and one Westbrook, known as T. Westbrook, played at cards, but I was not present when the game concluded, or when the note was given. That said Hogan and said Westbrook both informed me that the consideration of said note was for money won by playing at cards, from said Hogan by said Westbrook; that when said Hogan so informed me, he requested me not to indorse said note; I promised that I would not. That said Westbrook afterwards requested me to indorse said note and I did so; but afterwards remembering my promise to Hogan, I caused the indorsement to be erased. Said note was then owned by said Westbrook. I have no reason to doubt the truth of the statements made to me, as to the consideration of said note. The said note was made payable to me without my knowledge or consent. And I further state, that I know of no reason why said note was made payable to me, and I can not now say who owns said note."

This evidence was objected to, and rejected, and the defendants excepted to its rejection.

Carson, one of the defendants, made and filed an affidavit, stating that the consideration of the due-bill was money won at gaming, from Hogan by Westbrook; and that the fact was within the knowledge of the plaintiff, and that there was no competent witness by whom he could prove the same. The deposition of Sherman was taken under this affidavit; and he testified substantially according to his written admission. The evidence was rejected, and the defendants excepted. This testimony was rejected on the ground that it consisted mainly of facts made known to Sherman by the admissions of Westbrook, and did not therefore correspond with the affidavit.

The first ground of error alleged is, that the court below improperly rejected the admissions of Sherman, the plaintiff of record. We think this rejection was erroneous. The case as it stood when the plaintiff closed his evidence, did not disclose any interest in any other person. Sherman appeared to be the real and not a nominal plaintiff. It would be very strange if a defendant were not at liberty to meet such a case by the plaintiff's own declarations,...