Trymby v. Andress
Trymby v. Andress
Opinion of the Court
We find nothing in this record that would justify us in sustaining any of the assignments of error. The questions involved were rightly decided, and neither of them requires discussion. The witness, Charles C. Haines, called by the plaintiffs, is on the record as one of the defendants, but was not served. His interest, so far as he could have had any, was adverse to the plaintiffs. They elected to make him their witness; and, in the circumstances, there appears to be no valid objection to his competency. We think he was rightly admitted. Defendant’s requests for charge, recited in the second and third specifications, were rightly refused. The case depended on the question of fact whether the note specified in plaintiffs’ receipt of June 8, 1892, was given and accepted as absolute payment of the bill of goods therein mentioned. That question was fairly submitted to the jury, upon sufficient evidence, and found in favor of the plaintiffs. The judgment entered on their verdict, should not be disturbed.
Judgment affirmed.
Reference
- Full Case Name
- Enos D. Trymby, Walter E. Hunt and Lorenzo D. Wilkinson, trading as Trymby, Hunt & Co. v. Michael B. Andress, Horace G. Craven and Charles C. Haines, members of an unincorporated association, trading as Gordon Heights Club
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- Evidence — Competency of witness — Party dead. A.’s executor was sued jointly with C. and. H. for goods which A., C. and H. bought for an unincorporated association of which they were members. C. and H. were not served. H. was called as a witness by the plaintiffs to prove that a promissory note signed by the name of the association after its incorporation for the amount of the purchase was not an absolute payment of the debt. Held, that as H.’s interest was adverse to the plaintiffs, and they had elected to call him as their witness, he was competent for the purpose for which he was called. Promissory note — Receipt-Evidence. Plaintiffs sold goods to a committee of an unincorporated association. They subsequently took a promissory note signed in the name of the association after its incorporation. At the same time they gave a receipt “ in full settlement of all balance of our bill for goods furnished and all demands to date.” One of plaintiffs’ witnesses testified that at the time the receipt was signed, plaintiffs’ agent objected to signing it, and that it was only signed upon the agreement of one of the members to guarantee the note, and that the association should “ pay something on account, and fix it up when it came due, and renew it and pay it as it went.” Held, that the question as to whether the note was an absolute payment or not, was for the jury.