Butz v. Schwartz
Butz v. Schwartz
Opinion of the Court
delivered the opinion of the Court:
We entirely concur in the rulings of the courts below, and we deem it unnecessary to modify or add to anything said by Mr. Justice Wall in the foregoing opinion, except in respect to the ground upon which it was competent for appellee to testify in regard to the same matters of fact testified to by Jennings and Hughes.
The third exception of section 2, chapter 51, of the Revised Statutes of 1874, reads: “Where, in any such action, suit or proceeding, any such party suing or defending, .as aforesaid, or any person having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite-party or party in interest shall also be permitted to testify as-to the same conversation or transaction.” At the time of the-enactment of this exception, the words, “person having a di.rect interest in the event of such action, suit or proceeding,” had a well known meaning in the law of evidence, and it is therefore to be presumed that they are here used to express that meaning. The rule was, where the event of the suit, if adverse to the party adducing the witness, would render the latter liable either to a third person or to the party himself, there was a direct interest on the part of the witness in the ■event of the suit, and this without regard to whether the liability arose from an express or an implied legal obligation to indemnify. (1 Greenleaf on Evidence, sec. 393.) And so it was held, where the cause depended upon the question whether the agent had been guilty of some tortious act or some negli.gence in the course of executing the orders of his principal, .and in respect of which he would be liable over to the prin•cipal, if the latter should fail in the action pending against him, the agent was not a competent witness. 2 Greenleaf on Evidence, sec. 417; Bruner et al. v. Battell, Exr. 83 Ill. 317, and authorities there cited.
The payees of the note are liable to the assignee on an implied warranty of the title and genuineness of the note. (Drennan v. Bunn, 124 Ill. 175.) If the signature of appellee ~to the note was obtained by fraud and circumvention, or if it was a forgery, the payees are liable over to the assignee, and that fraud and circumvention, or forgery, being the work ■of Jennings and Hughes, they are liable for the injury thereby occasioned to the payees of the note, and being witnesses and testifying in this case, the judgment against appellant will he conclusive against them, (Drennan v. Bunn, supra,) and so they are “persons having a direct interest in the event of the suit,” within the meaning of the language of exception 3, section 2, supra.
The judgment is affirmed.
Judgment affirmed.
Reference
- Full Case Name
- Mary E. Butz, Admx. v. Jacob Schwartz
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- 1. Witnesses— competency—in suit by an administrator—opposite party-—and others having adverse interests. The purpose of section 2 of the act relating to evidence is to limit the operation of the first section so as to place parties upon an equal footing, and not to allow the estate of a deceased person, or of a person under the disabilities mentioned, to be subjected to a disadvantage not possible but for such death or disability. 2. So in a suit by the administrator of a deceased assignee of a note, the defendant, the maker of the note, is incompetent to testify to any matters occurring before the death of the plaintiff’s intestate, unless within one or more of the exceptions to section 2, chapter 51, of the Revised Statutes, relating to evidence. 3. If a promissory note received by an agent was procured by fraud and circumvention on his part, he will be responsible to his principal for any loss or damage caused him. by such illegal transaction, and he is .therefore interested in supporting the note, to avoid such responsibility ; and if such interested agent is permitted to testify, in behalf of one suing or defending as administrator, to any conversation or transaction with the opposite party, then such opposite party, or party in interest, may also testify to the same conversation or transaction. 4. Where a witness, eithei; interested, or not, in the event of a suit by an administrator against the maker of a note, testifies to a conversation of the defendant at the time of his signing the note, the defendant may testify as to the Whole of such conversation and transaction, including the whole res gestm. 5. In case the event of a suit, if adverse to the party producing the witness, will render the witness liable, either to a third person orto the party himself, there is a direct interest on the .part of the witness in the event of the suit, and this without regard to whether the liability arises from an express or an implied legal obligation to indemnify. • 6. Where the result on the trial of a cause depends upon the question whether the agent has been guilty of some tortious act or some negligence in the course of executing the orders of his principal, and in respect of which he is liable over to the principal, if the latter shall fail in the action pending against him, the agent will be an interested witness. 7. Practice—false testimony—restriction—as to matters material to the issue. An instruction that the jury may disregard the testimony of a witness except so far as corroborated, if he has testified falsely in any part of his evidence, should restrict such false testimony to matters material to the issue. But such error will not vitiate where the supposed false evidence is all clearly material. 8. Assignment—implied warranty by assignor—as to title, etc. The assignor of a note is liable to the assignee on an implied warranty of the title and genuineness of the note assigned by him, in case the signature of the maker is a forgery, or has been obtained by fraud and circumvention; and if such forgery or fraud and circumvention are the work of the agent of the payee of the note, he will be liable to the principal for the injury thereby occasioned.