Weston v. Elliott , 72 N.H. 433 ( 1904 )

The parties to the case are the executors of Weston, who have not elected to testify, Dowst, and Elliott. The court upon motion of Dowst made an order permitting the examination of Elliott in support of a special defence set up by Dowst. The only question transferred is that raised by the exception to this order.

The plaintiffs' contention is that the testimony of Elliott cannot be received under section 16, chapter 224, Public Statutes, which provides that when one party to a suit is an executor neither party shall testify, unless the executor elects to testify. This provision is merely an exception to the general provision making all persons competent as witnesses, whether interested as parties or otherwise, and does not impose any new restrictions upon the competency of witnesses. The law as to the excepted classes remains as it was before the legislation upon the subject. Stevens v. Moulton, 68 N.H. 254; Snell v. Parsons, 59 N.H. 521.

"Parties named upon the record were not as such and upon that account incompetent; their incompetency arose exclusively from their interest, and if they were willing to give evidence they might be called by the opposite parties." Stark. Ev. *127. Merely nominal parties to the record, who had no interest in the result, could testify (Piddock v. Brown, 3 P. Wms. 288, — 2 Eq. Cas. Abr. 397, var. 13; Jackson v. Barron, 37 N.H. 494; Wallace v. Blanchard, 3 N.H. 395); and a defaulted defendant having no interest, or whose interest was adverse or balanced, could be a witness for his co-defendant. Chase v. Pitman, 69 N.H. 423. In short, as said in Page v. Whidden, 59 N.H. 507, 511, "at common law, the general rule, both at law and in equity, excluding parties as witnesses, had exceptions." Peirce v. Burroughs, 59 N.H. 512. In chancery, parties to the record were subject to examination as witnesses much more freely than at law. 1 Gr. Ev., s. 361. Under certain circumstances, one defendant could use a co-defendant as a witness. A party to the suit, however, could not be examined except upon leave granted by the court for that purpose. Such order was, however, granted as of course upon affidavit that the party was a material witness and was not interested on the side of the applicant in the matter as to which such examination was proposed, the order being made subject to all just exceptions. Second Cong. Society v. Society, 14 N.H. 315, 325, Comstock v. Hadlyme, 8 Conn. 254, 262; Neilson v. McDonald, 6 Johns. Ch. 201; 2 Dan. Ch. Pr. 1043-1045. See Souverbye v. Arden, 1 Johns. Ch. 240, 246, 247.

The rule and the reason for it are stated by Parker, C.J., in the New Hampshire case cited (pp. 325, 326), adopting the language of Gresley's Equity Evidence 338, as follows: "As a suit in equity often contains many issues, and the general rule compels all who are interested in any way to be made parties, either plaintiffs or defendants, it often happens that a person who could furnish material evidence respecting one point in dispute is precluded from doing so by being made a party, in consequence of some interest in another point. Others, who might be witnesses, are often made parties for form's sake, as a mere trustee. Leave is therefore frequently given in equity for a party to be examined, on motion suggesting that he is not interested, and saving all just exceptions. The interest spoken of in the motion is interest in the matter to be examined into, not interest generally in the cause." If, however, after the taking of the evidence it appeared that the party was interested at the time of testifying, the use of the testimony was not permitted. Second Cong. Society v. Society, supra; Bell v. Woodward, 46 N.H. 315, 336; Mohawk Bank v. Atwater, 2 Paige 54, 60, 61.

The ruling of the superior court followed this practice, making due allowance for the change in the method of presenting evidence. The substance of the ruling was that Elliott's testimony should be received if he had no interest in the matter to which it related, and should be excluded if it appeared that he was interested. The power of the court to make the order was, as has been seen, not taken away by the statutory change rendering witnesses competent who had previously been incompetent because of interest. The exception must be overruled. For the same result under a similar statute, see White v. Ross, 147 Ill. 427.

Whether Elliott is interested in the subject-matter about which Dowst proposes to examine him, is a question which might properly be left until the evidence is presented. The most that can now be said is, that upon the facts now before the court Elliott has no interest in the issue whether Weston did or did not by a separate contract agree to indemnify or save Dowst harmless from loss in consequence of his signing Moore's bond as surety.

The liability of each of the parties and the full amount of their several liability has been settled by the judgment against them. The bill alleges that Moore, the principal, and Brookhouse, the ether surety, are insolvent, that Dowst and Elliott are solvent, and that Elliott has paid $10,703.29 and the plaintiffs $58,384.60 in satisfaction of the judgment, while Dowst has paid nothing. None of these facts appear to be disputed. In this situation, each of the three responsible sureties, as between themselves, was bound to pay one third of the judgment. Any one paying more than his share can recover, either in a bill in equity or by an action at law, contribution for the excess by him paid, of the one who has paid nothing or less than his share. Boardman v. Paige, 11 N.H. 431; Walker v. Cheever,35 N.H. 339. Dowst having paid nothing, the pleas (treating Dowst's affidavit as a plea) admit, except for the defence set up in them, the right of the plaintiffs to recover of Dowst one third of the judgment and of Elliott the same amount, less the amount which Elliott has already paid. Whether Dowst succeeds or does not succeed in establishing that he is not liable to the plaintiffs because of Weston's agreement with him, will not affect the result of the cause as against Elliott.

Elliott, on the facts now before the court, has no more interest in the subject-matter of Dowst's defence than he would have in a suit by Dowst against the plaintiffs or some third party on a similar contract of indemnity, brought after payment by him of his proportion of the judgment. "The disqualifying interest of the witness must be in the event of the cause itself, and not in the question to be decided. His liability to a like action, or his standing in the same predicament with the party, if the verdict cannot be given in evidence for or against him, is an interest in the question only, and does not exclude him." 1 Gr. Ev., s. 389; Fuller v. Rounceville, 31 N.H. 512, 518. Hence the fact that Elliott claims Weston made a similar, separate agreement with him does not disqualify him. A judgment establishing that Weston made the agreement claimed with Dowst would not be evidence that he made a similar agreement with Elliott, even if otherwise competent.

Whether Dowst pays his share of the judgment by the recovery or recoupment of damages due him for the breach of a contract of indemnity with the plaintiffs' testator or some third person, or by suffering a levy upon his property, does not affect Elliott's liability to the plaintiffs. The plaintiffs do not claim to recover of Dowst more than his share. If they did, and the result of the failure of Dowst's defence would be that Dowst would be compelled to pay more than his share, Elliott's interest would still be balanced, for he would remain liable for his share to any surety who had paid in excess, and it would be immaterial to him whether he paid the plaintiffs or Dowst. Hill v. Sweetser, 5 N.H. 168, 170, 171. The release by one surety of his claim against another for contribution has not the effect to discharge the claim of the surety paying against the other sureties, but does operate like a payment, to release the other sureties from their liability to contribute to make up the share so adjusted. Currier v. Baker, 51 N.H. 613, 618. It is suggested that, as between Weston and Elliott, Elliott is liable for one half the judgment, and that his testimony for Dowst tends to release him from one sixth of the judgment by reducing his liability from one half to the one third. Assuming that an agreement to indemnify one surety by another would have the same effect as a discharge of the claim for contribution by one against the other after it accrued, if Dowst were insolvent Elliott would be interested to that extent. But until Dowst's insolvency appeared, Elliott's interest would be uncertain, remote, and contingent, dependent upon facts not involved in the trial of the cause. An interest of this nature does not exclude a witness. Manchester Bank v. White, 30 N.H. 456, 459; Hill v. Barney, 18 N.H. 607,610; Stewart v. Kip, 5 Johns. 256; 1 Gr. Ev. 408.

No question as to Dowst's insolvency is now in issue. The plaintiffs proceed upon the ground that he is solvent, and the only issues are whether he and Elliott shall each be required to pay one third of the judgment. If the plaintiffs proceeded upon the ground that Dowst were insolvent, and claimed one half of the judgment should be paid by Elliott, it may be clear that Elliott could not testify. to the agreement with Dowst for the purpose of reducing his share to one third. But the plaintiffs cannot be permitted to bring their suit against Dowst upon the ground that he is solvent and liable for one third, thereby excluding him from testifying, and at the same time claim that he is insolvent and that Elliott is liable for one half, and exclude Elliott's testimony also.

It is further urged that the testimony of the parties is offered to establish that it would be unjust to exclude them from testifying, whereas the rule is, it is claimed, that the injustice which will authorize the court, under section 17, chapter 224, Public Statutes, to permit a party to testify, must appear otherwise than from the testimony of the party. Sheehan v. Hennessey, 65 N.H. 101, 102; Cochran v. Langmaid,60 N.H. 571; Harvey v. Hilliard, 47 N.H. 551. But the testimony of Elliott is offered, not to prove the injustice of excluding him as a witness for himself, but to establish his want of interest in the defence set up by Dowst and hence his competency upon that issue as matter of law. 1 Gr. Ev., ss. 424, 425; Walker v. Sawyer, 13 N.H. 191, 195. While questions might have been raised in the suit common to both defendants, it appears that as to all those questions there is no dispute. The plaintiffs claim several judgments against each defendant. As to the only matters in controversy and the judgments which may be rendered, the interests of the defendants are several and distinct. As to everything in controversy, the proceedings in reality are two independent actions. No reason is perceived why the issues raised in each action may not properly be separately tried by the court or a jury. To the action or issue between the plaintiffs and Dowst, Elliott is not a party and can testify under the terms of the statute. Chase v. Pitman, 69 N.H. 423; P.S., c. 224, s. 17. Neither will the judgment for or against Dowst be evidence for or against Elliott, or bind him in any way.

Exception overruled.

BINGHAM, J., did not sit: the others concurred.