Gray's Executors v. Brown

22 Ala. 262

Opinion

CHILTON, C. J.

When this case was before us at a previous term, (see 18 Ala. Rep. 641,) we held, that an agreement founded on a valuable consideration, entered into between the creditor and principal debtor to a bill or note, to extend the day of payment beyond the time when it fell due, was such an alteration of the contract as discharged the security ; and this, irrespective of the length of time the payment was postponed, or whether it operated to the prejudice of the security or not. We further held, that the refusal of the creditor to sell the propertjr on which he had taken a deed of trust to secure the payment of the bill, upon the request of the endorser to make such sale, did not discharge the latter. The case has again returned upon us, and several questions are presented which are' not affected by the previous decision.

1. We waive the consideration of the question, whether Donoho, who was one of the drawers and acceptors of the bill sued on, was competent to testify, without a release, in favor of Brown, who endorsed the bill for the accommodation of the firm of Donoho & Payne, inasmuch as the counsel have not thought proper to argue this point; and the objec-. tion to the witness’ competency maybe disposed of upon another ground. The counsel for the defendant in error, conceding the incompetency of the witness, insists, that the release accompanying his deposition discharged his interest, and qualified him to testify. We do not think the evidence shows that this witness, either before or at the time of giving his deposition, was apprised of his release; and as the object of a release is to free the mind of the witness from any supposed bias which his interest might otherwise produce, it is clear, that if he testifies in the absence of all knowledge of the release, it is the same as if it had never been executed. It is not necessary that there should be a delivery of the release personally to the witness. It may be filed in court. Brown v. Brown, 5 Ala. 508; Brow & Furguson v. Dounman, 11 ib. 880. So also, if tbe party execute and tender tbe release, and tbe witness refuse to accept, tbis refusal shall not deprive tbe party of bis testimony, having done all be could. Burt v. Baker, 8 T. R. 35; Godtitle v. Welford, Doug. 139; Roscoe’s Civ. Ev. 93; 1 Pbil. Ev. 128.

But all tbe authorities agree, that tbe witness must be cognizant of tbe release, where it is attempted to restore bis competency by such means.

2. Tbe objection urged by tbe counsel for the plaintiffs in error, that tbe release in tbis case is insufficient, because it applies only to Donobo, and does not in terms discharge bis late partner, Payne, cannot be supported. A discharge of one partner from all liability on account of an undertaking by the firm, is a discharge of the firm; for tbe reservation of the right to proceed against tbe other jjartner, who in turn could require tbe discharged partner to make contribution, would render tbe discharge incomplete; but tbis purports to be a full and complete discharge, and hence operates as a discharge of every party, who, if made liable to tbe releasor, could demand contribution of tbe witness. Tbis view does not conflict with those cases which bold, that a partner may stipulate for his own discharge from tbe debtor, and that his co-partner shall remain bound. 10 Ala. 999.

3. But conceding that tbe witness was incompetent, by reason of interest, and that tbe release found in tbe deposition did not restore bis competency, tbe question arises, did tbe plaintiffs make the objection in proper time ? Tbe parties must have known tbe true position tbe witness occiqfied to the subject matter in litigation between them, at the time it was proposed to take bis deposition. Tbe plaintiffs’ counsel was present upon bis examination, and raised no objection upon tbe score of interest. True, he made a general objection to his testimony; but tbe rule, as frequently asserted by tbis court, is to disregard such general, undefined objections. Wallis v. Rhea, 10 Ala. 451; Milton v. Rowland, 11 ib. 732; Donnell v. Thompson, 13 ib. 440; Same v. Jones, ib. 490. Had tbe objection been to tbe conrpétency of tbe witness, the defendant could have released bis interest, if that were the ground; but tbe objection is to tbe deposition, and not to tbe legal capacity of the witness to depose. Such objection does not raise the question of interest. 10 Mar. Lou. Rep. 633. The question then recurs, as the objection for interest in the witness was not raised until the deposition was offered to be read on the trial, should the court have excluded it? It must be admitted, that the decisions bearing upon this point are not very satisfactory or consistent. The rule laid down by the elementary writers upon the law of evidence, as it originally obtained, is, that an objection to competency ought to be taken in the first instance, and before the witness has been examined in chief; for the reason that it would afford an unfair advantage to the other party, who would avail himself of the testimony of the witness if it were favorable, but would get rid of it by raising the objection if it turned out to be adverse. 1 Stark. Ev. 121; Rex v. Watson, 3 E. C. L. R. 271, cited by him; Roscoe’s Civil Ev. 80; 1 Phil. Ev. 123; 1 Greenl. Ev. § 421-2.

So in Ogle v. Paleski, Holt 435; S. C., 3 E. C. L. R. 417, where interrogatories and cross interrogatories were read at the trial, and from the answers it appeared that the witness was interested, Gibbs, C. J., received the evidence, ruling that the objection ought to have been made in a former stage. See also Buching v. Gomer, 3 E. C. L. R. 117.

A party has a right, at his election, to admit an interested witness to testify against him, but the election must be made as soon as the opportunity is presented for making it; and failing to make it at that time, he must be considered as having waived it forever. Greenl. Ev. § 421; Donelson v. Taylor, 8 Pick. 390. I speak of course of those cases where the interest of the witness is known to the party who seeks to exclude his testimony; for, if the interest was not discovered until after he has been examined, and “ cross examined to the bone,” as Lord Eldon said in Vaughan v. Worrall, 2 Swanst. 400, the objection may then be insisted on, and the testimony excluded. So that, “if the objection is taken as soon as may be after the interest is discovered, it will be heard ; but after the party is in mora, it comes too late.” 1 Greenl. Ev. § 421. The party offering the deposition should have an opportunity to release the witness, which he may do at any time before the examination is completed; but he would be deprived of tbis right, if induced to repose upon tbe legality of tbe testimony, by the failure of the opposite party to object until the trial, or by some general, vague objection which may be referred to any other than the true reason, which lies concealed in the breast of the objector until sprung for the first time at the trial. 3 How. Sup. Ct. Rep. 515, 530; 1 Paine 400; 2 Paige 54; 2 Tidd’s Pr. 812. The rule, says Mr. Grreenleaf, supra, is the same in equity and at law; and it has frequently been held, both in this country and in England, that if the interest is known while before the examiner, it should be made there, and if not made the first opportunity after it is discovered, it is waived. 2 Phil. Ev. (Cow. & Hill’s Notes) 257, note 247, and cases there cited; ib. 708, note 497. The same doctrine seems to be recognized in Stewart v. Connor, 13 Ala. 94. These authorities may suffice to show that the court did not err in admitting the deposition of Donoho to be read, conceding his interest and the invalidity of the release.

4. We are wholly unable to perceive how the testimony showing a depreciation in the value of the property conveyed by the first deed can be made 'relevant, or what influence it could have had upon the question of defendant’s consent to the extension of the demand by the principal debtor. If the object was to prove a probable motive, founded on the fact of such depreciation, for withholding defendant’s assent to the extension of the debt, which would operate to postpone the sale, and consequently tend to increase his risk, as the property was lessened in value, such proof was clearly inadmissible ; for the fact of depreciation had no direct or apparent connection in any manner with the fact proposed to be established by it, and was too remote from the fact of assent, or dissent of the defendant, to furnish any reasonable presumption or inference concerning it, as to whether it existed one way or the other. We can readily perceive how such proof might well have misguided the jury, by drawing away their minds from the true points involved in the issues, and as tending to excite a prejudice injurious to the rights of the plaintiffs. The presumption to be predicated of such proof was too remote and uncertain to furnish any safe guide in arriving at the truth of the fact attempted to be established by it, and tbe court clearly erred in the admission of the proof. See Jones v. Cooper at the present term, and cases there cited.

5. In regard to the charges, a few words may suffice. The agreement made by Brown, as evidenced by his writing on the back of the first deed of trust, had the effect of waiving Ms right to a discharge by reason of the indulgence then granted, but does not, by any reasonable construction of it, give the creditor a right to give further indulgence. So far as he consents to an alteration of the original contract, Brown was bound by it as altered; but he was bound as accommodation endorser, and had the right to stand upon the terms of his contract, as altered by his consent. Any material alteration of this subsequent contract, by giving further day of payment to the principal debtor, by an agreement between him and the creditor, based on a valuable consideration, would discharge Brown, as is shown by the decision of this case at the previous term.

6. Neither do we think that the charge given, that if Don-oho & Payne had the right, under the second agreement, to have enjoined the plaintiffs’ testator from proceeding to the collection of the demand before the expiration of the time for which they had agreed to extend the demand, was objectionable as referring to them a question of law. It was merely used as an illustration by the court, and he immediately proceeded to explain what would thus entitle them to enjoin such collection; that if, when said second deed was executed, the debt was extended by Gray to a day certain, the deed was a sufficient consideration therefor, and entitled the said Donoko & Payne to enjoin Gray, if he attempted the collection before the time agreed upon as the extension had expired. We see nothing wrong in this charge; but it asserts the familiar principle as laid down by this court in many cases.

7. As respects the question of usury, we fully agree to the proposition, that usury is a personal privilege intended for the benefit of the borrower, and that if he chooses to waive it, no one else can take advantage of it. Cook & Kornegay v. Dyer, 3 Ala. 643. But we do not understand this principle to assert, that the principal debtor alone can avail himself of the usury; for if this were the law, the surety would of ten be bound beyond his principal. If the surety may not set up the usury, and the principal may, then, when the surety is sued and pays the debt, he could not be indemnified by a recovery out of his principal. Such, however, is not the law. The rule is, that when the party who makes the corrupt or usurious contract sues upon such contract, the security can avail himself of any valid defence which his principal might set up, and an accommodation endorser may have the same relief. Dunscomb v. Bunker, 2 Met. Rep. 8; Weimer v. Shelton, 7 Miss. Rep. 237; Warren v. Crabtree, 1 Greenl. Rep. 167.

Nor does the renewal of the demand from year to year, and the splitting it up by giving one bill for the principal debt and another for the usury, affect the question. It would be a fraud uj>on the statute which would enable parties to evade it altogether, were they allowed to render such devices effectual. If the original contract was usurious, any subsequent one to carry it into effect is likewise usurious; and although the usury is paid from year to year, and extensions granted upon the execution of new securities, this does not free the new securities from the taint of usury, but should be regarded as a continuation of the same transaction. See the cases cited in voi. 3 TJ. S. Big. 620; vol. 2 Sup. to same, 907; and the payments made should be credited on the demand, which, under the statute, can draw no interest, if found usurious.

There was no error in the charge of the court prej udieial to the plaintiffs in error; and the charge asked upon the subject of the usury, which assumed that the interest should first be extinguished bjr the several payments, and that defendant would only be released from interest from the time of the last payment in the event more than eight per cent, per annum was reserved by the contract, was properly refused.

For the error we have noticed in the admission of proof as to the depreciation in the value of the property conveyed by the first deed, the judgment is reversed, and the cause remanded.