Samuel v. Withers

• Decision Date: 31 July 1852
• Parties: SAMUEL, Plaintiff in Error, v. WITHERS, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 532

SAMUEL, Plaintiff in Error,

v.WITHERS, Defendant in Error.

Supreme Court of Missouri.

July Term, 1852.

1. The deposition of a witness has been taken in a suit and remains on file unsuppressed. Held, on the trial of the suit, the party cannot read in evidence a deposition of the same witness taken in a former suit, between the same parties, unless he has filed it in the suit in which he proposes to read it, or has given the opposite party notice that he intends to use it.

2. A., as security of B., signs a note payable to C. Usury, which B. has contracted to pay C., is included in the amount on the face of the note. Held, the omission to disclose this fact to A. will not operate to discharge him.

Error to Boone Circuit Court.

The opinion of the court contains a sufficient statement of the facts.

Gordon and Hayden, for plaintiff in error, insisted:

1. That the deposition of Bristow should have been excluded, because he was an interested witness; because it had been taken in another suit in which he was a party to the record, and had not been filed in this cause before it was read to the jury; because the evidence it contained was irrelevant; and because the deposition of the same witness had been taken in this cause, and was tnen on file and not suppressed.

2. That, even if usury had been proved, defendant was, nevertheless, bound to pay the money sued for in this action, or, at least, the sum of money borrowed by Bristow. 14 Verm. Rep. 258, 260, 261.

3. That the alleged agreement between Hall and Bristow, for delay of payment, was not binding on Hall, because, first, the delay was not for any specific time, and, second, usurious interest was the consideration of said agreement. Therefore, it did not discharge the defendant, Withers. 1 B. Monroe, 285, 324; 3 J. J. Marshall, 527; Barbour's Eq. Dig. 653; 4 Howard's Ala. Rep. 684; 5 Blackf. Rep. 367; 4 id. 241; 1 id. 391; 8 Mo. Rep. 49, 316; 13 Ohio, 84, 104.

Leonard, for defendant in error.

1. Bristow, one of the defendants, was a competent witness

for Withers, his co-defendant, notwithstanding he had been a party to the record, there having been a judgment against him by default.

2. Bristow, as the principal debtor, was bound to indemnify the respondent against the costs of the suit, and, so far, had an interest to protect the respondent from a judgment. The release discharged him from that liability, and restored his competency. Austin v. Dorwin, 21 Verm. Rep. 38.

3. Bristow's deposition in the first suit was competent evidence for the respondent upon the trial of the second suit.

4. The concealment from the surety of the fact that, instead of the money mentioned in the note being lent to the principal debtor, a portion of it was for usurious interest, to grow due upon the money actually advanced, discharged the surety from his liability. Pidcock v. Bishop, 10 E. C. L. Rep. 197; Stone v. Compton, 35 id. 56; Hager v. Mounts, 3 Blackf. Rep. 57; Whitcher v. Hall, 11 E. C. L. Rep. 226; Bonser v. Cox, 4 Beavan, 379; 4 Penn. State Rep. 353.

5. The respondent put his case to the jury upon the concealment, and not upon the agreement, to extend the time; and, therefore, the question as to the effect of such an agreement, founded upon a promise to pay usurious interest, is not now before the court; but if it were, it would be confidently insisted that such an agreement discharges the surety. Austin v. Dorwin, 21 Verm. Rep. 44; Wheat v. Kendall, 6 N. H. Rep. 504; Bank v. Woodward, 5 id. 106; Vilas v. Jones, 10 Paige's Rep. 76.

RYLAND, Judge, delivered the opinion of the court.

This was an action of debt, brought by the plaintiff in error, Washington Samuel, against Jennings Withers, defendant in error, in the Boone Circuit Court, at the March term, 1846, on a note executed by one Julius C. Bristow, as principal, and James M. Clarkson and the defendant, Withers, as securities, for $1,590, payable to John Hall, and by him assigned to Manlius V. Thompson, and by Thompson to the plaintiff. From the record the following may be found as the principal facts in the case:

To the plaintiff's action the defendant pleaded: First, nil debit; second, payment; third, that Julius C. Bristow, the principal in said note, agreed with John Hall, the payee, to pay him usurious interest for the loan of $1,500, without the knowledge or consent of the defendant in error, for and during the space of two months; fourth, that Bristow was principal, and the defendant in error security in said note, and that Hall, the payee, knowing the fact, after making said note, and after the same became due, it was agreed between said Hall and Bristow, without the knowledge of the defendant in error, that said Hall should extend the time of payment for the space of two months from the time said note was due and payable; that the said Bristow would pay said Hall two per cent. per month on the amount of said note for two months, for which time payment was delayed and extended without the defendant's knowledge; fifth, usury as to seventy-five dollars of said note; sixth, that, at the time the note became due, the said Bristow was solvent and able to pay the note; that Hall, well knowing the fact, and that Bristow was, at the commencement of this suit, and at the time of the assignment to Thompson, wholly unable to pay the same, or any part thereof, and that while Bristow was solvent and able to pay the note, and while said Hall owned said note after it became due and payable, the said Hall corruptly and fraudulently delayed the collection of said note, with intent to charge the said defendant with the payment thereof.

To the 3d, 4th, 5th and 6th pleas the defendant in error demurred, which was sustained as to the 4th plea, and overruled as to the 3d, 5th and 6th, upon which the plaintiff joined issue.

On the trial the plaintiff gave in evidence the note sued on, with the several assignments endorsed thereon, and rested his case. Whereupon the defendant read in evidence to the jury the deposition of Julius C. Bristow, the principal in the note, which was taken in a former suit between the plaintiff in error and the said Julius C. Bristow and James M. Clarkson and the defendant in error, as defendants, and which suit had been determined. The defendant also read to the court, for the purpose of laying a foundation for the introduction of said Bristow's deposition, a release from the defendant in error to said Bristow, and also the record and proceedings in said last named cause, and also read to the court, at the time of offering said Bristow's deposition, a rule of practice of the Circuit Court in relation to the time when objections are required to be filed to the competency and relevancy of depositions filed in a cause. To the reading of said deposition to the jury the plaintiff objected, but the court overruled the objection, and permitted the same to be read to the jury, although the same had not been filed in this cause, nor any notice given the plaintiff that the same would be offered by defendant, and although the deposition of the same witness had been taken and filed in this cause by said defendant, and had not been suppressed; to which the plaintiff excepted.

Before said Bristow's deposition was read to the jury, the plaintiff in error moved the court to exclude from the jury as evidence the several parts of said deposition included between the figures 1, 2, 3, 4, 5, 6, 7 and 8, as marked upon the face of the deposition.

Bristow, in his said deposition, states that on the 27th day of March, 1838, he borrowed of John Hall $1,500, and on that day executed his note to Hall, payable two months after date, for $1,590, with Jennings Withers and James M. Clarkson as his securities; the $90 was added for interest on the $1,500 for two months' time, named on the face of the note; and about the time the note fell due the witness saw Hall, and told him that he would not be able to pay the money at the time the note would fall due, but thought he would be able to pay the money in two or three months. Hall observed that he could do without the money, but he (witness) must pay him two per cent. per month interest, which he agreed to pay. Witness further states that he thinks Hall called on him sometime in August, 1838, to receive payment of the note, and witness informed him that he could not pay the money, and still agreed to pay him interest at the rate of two per cent. per month. Withers and Clarkson, witness thinks, knew nothing of any indulgence given by Hall after the note fell due. Witness knows he never informed them of any of their arrangements. Witness states that on the 7th day of July, 1838, he paid Hall $60, and on the 27th day of August, in the same year, he paid all the interest due at that time, at the rate of two per cent. per month, and on the 6th of September, 1838, he paid $30; all of these credits are entered on the note. Bristow further stated that in July, 1839, he, Hall, had a settlement about the interest that had accrued on the note that Hall held on him, and Hall was directed to credit $80 on the note that Withers and Clarkson were on, which was in his hands, which he credited on another note which he held on witness. This was substantially all the proof given in the cause.

The plaintiff then moved the court to give to the jury eleven instructions as to the law of the case, which are as follows:

1. That if the jury find from the evidence in the cause that the defendant, Withers, made the note sued on to Hall, and that Hall assigned the same to Manlius V. Thompson, and that the same was assigned by Thompson to the plaintiff, prior to the commencement of this suit, as stated in the petition of the plaintiff, and that the money therein specified had not been paid, and was still due and owing, at the time of the commencement of this suit, that then the jury ought to find a verdict for plaintiff upon the issue joined between the parties upon the first plea of the defendant filed in the...