Butz v. Schwartz

1. Witnesses— competency—in suit by an administrator—opposite party-—and others having adverse interests. The purpose of section 2 of the act relating to evidence is to limit the operation of the first section so as to place parties upon an equal footing, and not to allow the estate of a deceased person, or of a person under the disabilities mentioned, to be subjected to a disadvantage not possible but for such death or disability. 2. So in a suit by the administrator of a deceased assignee of a note, the defendant, the maker of the note, is incompetent to testify to any matters occurring before the death of the plaintiff’s intestate, unless within one or more of the exceptions to section 2, chapter 51, of the Revised Statutes, relating to evidence. 3. If a promissory note received by an agent was procured by fraud and circumvention on his part, he will be responsible to his principal for any loss or damage caused him. by such illegal transaction, and he is .therefore interested in supporting the note, to avoid such responsibility ; and if such interested agent is permitted to testify, in behalf of one suing or defending as administrator, to any conversation or transaction with the opposite party, then such opposite party, or party in interest, may also testify to the same conversation or transaction. 4. Where a witness, eithei; interested, or not, in the event of a suit by an administrator against the maker of a note, testifies to a conversation of the defendant at the time of his signing the note, the defendant may testify as to the Whole of such conversation and transaction, including the whole res gestm. 5. In case the event of a suit, if adverse to the party producing the witness, will render the witness liable, either to a third person orto the party himself, there is a direct interest on the .part of the witness in the event of the suit, and this without regard to whether the liability arises from an express or an implied legal obligation to indemnify. • 6. Where the result on the trial of a cause depends upon the question whether the agent has been guilty of some tortious act or some negligence in the course of executing the orders of his principal, and in respect of which he is liable over to the principal, if the latter shall fail in the action pending against him, the agent will be an interested witness. 7. Practice—false testimony—restriction—as to matters material to the issue. An instruction that the jury may disregard the testimony of a witness except so far as corroborated, if he has testified falsely in any part of his evidence, should restrict such false testimony to matters material to the issue. But such error will not vitiate where the supposed false evidence is all clearly material. 8. Assignment—implied warranty by assignor—as to title, etc. The assignor of a note is liable to the assignee on an implied warranty of the title and genuineness of the note assigned by him, in case the signature of the maker is a forgery, or has been obtained by fraud and circumvention; and if such forgery or fraud and circumvention are the work of the agent of the payee of the note, he will be liable to the principal for the injury thereby occasioned.

Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.