Opinion
September 11, 1907.
Robert L. Stanton, for the appellant.
Louis M. Brown [ Joseph A. Kellogg of counsel], for the respondents.
The defendant cannot resist liability upon the ground that the time within which to pay the liability guaranteed has been extended by the taking of the new note. That extension was with the full consent of the sureties, and was in fact negotiated by the defendant McNaught, who is now defending. Nor can the defendant defend by reason of the failure to charge the indorsers at the time that the note became due. The indorsers thereafter waived notice of protest upon that note, and moreover a failure to charge indorsers is not such a release of security as will discharge a guarantor. (See Deck v. Works, 18 Hun, 266.) Whether the guaranty was so delivered as to create a liability on the part of the defendant, and whether the second note was taken as full payment of the first note were matters properly submitted to the jury, and their determination thereof is, we think, fully sustained by the evidence.
A more difficult question arises over the ruling of the trial judge excluding the evidence of the witness Wegner as to conversations had with the plaintiffs' testator. Those conversations might have been material upon either of the questions submitted to the jury. As they were excluded they are presumed to have been material, and if they were wrongfully excluded the defendant here would seem to be entitled to a new trial of the issues.
The witness Wegner had been an indorser upon this first note, and was also an indorser upon the second note. He had been sued upon the second note by these plaintiffs in the State of Wisconsin. At the time of the trial he had waived the notice of protest upon the first note, and was, therefore, liable thereupon. The objection to his testimony was that he was incompetent to swear to a personal transaction under section 829 of the Code of Civil Procedure. The question is thus presented whether an indorser who is primarily liable on the note and, therefore, liable to the sureties who were behind him who are compelled to pay the note has such an interest that he cannot swear as to personal transactions with one of the sureties deceased in an action for contribution between the representatives of that surety and another surety. In our opinion this question has already been determined in the Court of Appeals. In Wallace v. Straus ( 113 N.Y. 238) one W., plaintiff's testator, a stockbroker, was carrying certain stock for S. on a margin. The margin became inadequate and defendant executed to W. a written guaranty for any loss sustained by reason of the holding and carrying of said stock. Defendant was afterwards sued upon that guaranty and S. was called as a witness by him, and having testified that he gave instruction to W. in November, 1881, with reference to the sale of the stock, was asked to state those instructions. This was objected to on the ground that the witness being the principal debtor was interested in the event of the action and so was incompetent to testify to a personal transaction with W. under section 829 of the Code. The objection was sustained in the court below. It did not appear that S. had received any notice from the defendant to defend, or had undertaken the defense. This ruling was held error. It was held that S. was a stranger to the action and not interested within the meaning of the Code; that he was not bound by the litigation and had no such legal interest in the event of the action as to preclude him from testifying as against the representatives of the stockbroker. This case is somewhat different from the case of Church v. Howard, relied upon by the respondents here, reported in 79 New York at page 415. In that case the principal was a party to the action and had made default. It is more difficult to distinguish the case from the case of Lawton v. Sayles (40 Hun, 252), but if the case be not distinguishable the case of Lawton v. Sayles must be deemed to have been overruled by this case in the Court of Appeals. In the case at bar the witness Wegner has no legal interest in the personality of his creditor or in the question whether he must pay the whole amount to the representatives of Spier or in part to McNaught and Miller. If this judgment should be collected we assume that McNaught and Miller will become equally interested with the plaintiff in his suit in Wisconsin and would be entitled to become joint plaintiffs with him. It is argued that the witness Wegner is interested in the result because he swears that he has a counterclaim that he proposes to set up in this Wisconsin suit against the plaintiffs. But that counterclaim is a counterclaim against all these guarantors by reason of their joint promise to construct the road in which they were all interested. His interest then would seem to be that the plaintiffs should succeed in order that the Wisconsin action should be made an action by the guarantors jointly, in which that counterclaim would without question be admissible. ( Spofford v. Rowan, 124 N.Y. 108.) If so, his evidence offered in behalf of McNaught to defeat the plaintiffs' liability would not be in his own behalf but against his interest, which evidence is not prohibited by section 829 of the Code. Moreover, there is no proof that the plaintiff's estate is insolvent and is not liable to respond fully to any claim which the witness might have against the estate. If such be the fact, he would have no legal interest in preventing this contribution by the sureties and the consequent change of his liability from a single liability from the whole amount thereof to the plaintiff's estate to a divided liability to the three sureties contributing to pay the note. A judgment herein recovered would in no way be binding upon him, and we are unable to take the case out of the authority of the Wallace case cited. In our judgment, therefore, the trial court erred in rejecting the testimony of the witness, for which error the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.