Stiles v. Western Rail Road

52 Mass. 376

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Wilde, J.

*

The question on the case reported is, whether Lord, whose deposition was admitted in evidence, was a competent witness. The objection is, that he was interested in the event of the suit. By the facts reported, it appears that the defendants contracted with Josiah Baylies for the construction of a section of their rail road, and that he underlet the same to a company consisting of the said Lord and one Stocking and one Lard; and that the same was underlet by said Stocking to the said Lord and Lard. It also appears that the plaintiffs had released Stocking and Baylies from all liability to them on account of their claim in this action. This release operates as a bar to any action that the plaintiffs might bring either against Baylies, or against Stocking and Lord. The release to Baylies alone would be sufficient to bar an action for damages against Stocking and Lord; for he could not suffer any by the non-fulfilment of their contract ; and the release to Stocking operates as a release of Lord also; their contract with Baylies being joint, and not joint and several. It is clear, therefore, that Lord would not be liable to the plaintiffs, if they had failed to recover in this suit. If, however, it were otherwise, Lord’s interest would be the same ; for he would be liable to Baylies, and Baylies would be liable to the defendants, if the plaintiffs recover against them. In such case, his interest would be equal; but, having been released by the plaintiffs, his-interest is in favor of the defendants; and on either ground he was a competent witness.

Some objections were made to the answers to two interrogatories put by the plaintiffs, on the ground that they were leading, But there does not appear to be any ground for either of the objections. The eighth interrogatory was, “ did you, after the dismissal of your company as aforesaid, exercise the same care and superintendence over the work as before ? State particularly what you did,” &c. The answer was, that he had exercised no superintendence over the work after that time. So that, if the question was a leading one, the witness was not led thereby; and that is a sufficient answer to the objection. The 9th interrogatory was, “ did you give to plaintiffs a note for $200 ? If so, explain by whom said note was paid, and how it was paid.” The answer was, “ on or about the 1st of April 1840,1 gave a note of $200 to Gideon Stiles, payable at the Hampden Bank in sixty days, which note was given for powder delivered to our firm by the plaintiffs, previous to February 1840. The note was paid by Mr. Adams. He brought the note to me, and said the corporation would not accept it, and that ! must give Mr. Stiles an order on him (Adams) for the $200. Mr. Adams took Mr. Stiles’s order for $200, and gave me up the note.” Now the existence of this note was proved aliunde, and the defendants had introduced evidence respecting it, and the purpose of reading the answer to this interrogatory was to explain the payment. The form of the question was wholly immaterial.

Exceptions overruled

Hubbard, J. did not sit in this case.