Powell v. Derickson
Powell v. Derickson
Opinion of the Court
Opinion by
It is not necessary to determine now whether Cyrus Kitchen was a competent witness to matters occurring in the lifetime of D. Y. Derickson, deceased. The court below held that he was not. The plaintiffs were not injured by this ruling because the specific matters proposed to be shown by him were established by admittedly competent testimony and were not disputed. That the certificate of October 10,1893, represented the balance of a deposit made prior to the death of Derickson and while he was a member of the firm, was conceded. For a similar reason it is not necessary to consider the specifications which relate to the admission of evidence tending to show the plaintiffs had knowledge of Derickson’s death before their acceptance of the certificate of October 10, 1893 in lieu of the certificate of December 11, 1890. The plaintiffs admitted that they heard of his death at or about the time of its occurrence, but did not xecall having seen the announcement of it in the papers. We ■do not decide that the rulings referred to were erroneous, but that if they were they were not prejudicial to the plaintiffs’ case. We do not reverse a judgment for harmless error.
Did the court err in holding the administrators incompetent to testify they did not know that Derickson was a member of the firm? This was the crucial point in the case. If, with knowledge of his membership they surrendered the certificate of the old firm and accepted the certificate of October 10,1893, in satisfaction of it, they would be, prima facie, liable to the estate they represented for a loss occasioned by the substitution of the latter for the former. They were parties to the suit having an interest, seemingly at least, adverse to the right of the estate represented by the defendants. The cases cited to sustain their claim of competency to testify as above stated are not applicable to their contention. The witnesses allowed to testify in these cases were not parties to the suit and had no apparent
The evidence fully warranted the submission of the case to the jury on the questions whether the plaintiffs knew that Derickson was a member of the partnership, and if so, whether they accepted the certificate of October 10, in full satisfaction of the obligation imposed by the certificate of December 11,1890. Neither a recital nor a summary of the evidence bearing upon these questions is deemed necessary. There was no direct or positive testimony affecting the first question. But the circumstances disclosed by the testimony were sufficient to fairly authorize an inference that the plaintiffs knew Derickson was a member of the partnership. He was a prominent citizen of Meadville, and well known to them; he became a member of
The specifications based on excerpts from the charge, and on the answers to the points submitted by the parties are not sustained. The excerpts and answers considered in connection with the entire charge, furnish no warrant for reversing the judgment. All the specifications of error are overruled.
Judgment affirmed.
Reference
- Full Case Name
- Watkin G. Powell and Patrick Clark, Administrators of the Estate of Wm. Gibson v. Charles M. Derickson and G. M. Derickson, Executors of the Estate of D. V. Derickson, impleaded with Cyrus Kitchen and others, doing business as the Meadville Savings Bank
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- Evidence — Competency of witness as to imdispuled fact's not material— Review. Where specific matters proposed to be shown by a witness who is held to be incompetent by the trial court, are established by admittedly competent testimony, and are not disputed, the question of the competency of the witness is immaterial, and on appeal the Supreme Court will not consider the question. Evidence — Competency of witness — Partnership—Bank. D. was a member of a partnership conducting a bank from 1877 until his death in 1891. In 1886 G. deposited with the bank a large sum of money, and received a certificate of deposit therefor. He died intestate in 1887. In 1890 a partial payment was made upon the certificate and G.’s administrators accepted a new certificate for the balance. In 1893, after the death of D., another partial payment was made, and G.’s adminitrators accepted a new certificate for the balance. In an action by G.’s administrators against D.’s executors on the certificate, the evidence showed that D. was a prominent citizen of the city in which G.’s administrators lived, and was well known to them, and from 1887 until 1893, G.’s administrators had constant dealing with the partnership. Held, (1) that if G.’s administrators knew that D. was a member of the co-partnership, they were liable to G.’s estate for a loss occasioned by the substitution of the certificate of 1893 for that of 1890, and they were therefore interested in the result of the suit; (2) that from the nature of their transactions with the partnership and their position as trustees, it might reasonably be inferred that they were not without knowledge respecting the membership of it, and therefore incompetent to testify to their want of knowledge; (3) that it was proper to admit evidence of transfers of stock of the bank, of the introduction of new members and the part they took in the management of partnership affair's; (I) that the evidence was sufficient to submit to the jury to determine whether G.’s administrators knew that D. was a member of the firm.