Birge v. Rhinehart

Day, J.

— The questions presented demand but very brief notice.

I. One Haskell was introduced as a witness for plaintiff who testified, upon cross-examination, that plaintiff requested him to collect the claim and do the best he could; that he was not to have a contingent fee; that there was no agreement as to how he was to be paid, and that he did not know that he would get any thing if the claim was not collected. Defendant moved to exclude his testimony because he was interested' and not competent to testify as to matters occurring in the lifetime of John White. The court rightly overruled the motion. The interest which disqualifies must be a legal, certain and immediate interest. If it is of a doubtful nature, the objection goes to the credit and not to the competency of the witness. 1 Greenl., §§ 386, 390. An interest so contingent as that an attorney may not be able to get his pay if his client does not recover does not render him incompetent. It may affect his credit.

II. The payment of the $900 to the husband of plaintiff does not estop her from claiming the balance due. There is evidence that, at the time of said payment, J. W. Birge told White that he had no authority to accept that sum as a full payment, and that he did not so accept.

It cannot be claimed that less than the whole amount due, paid under such circumstances, will discharge the entire demand.

III. The sheriff’s return upon the execution was objected to as incompetent, irrelevant and immaterial. As a record of the court, showing the sale of the mortgaged premises, to whom, for how much, and the amount retained by White, its competency, relevancy and materiality seem to us to be so far placed beyond dispute, as not to be a fit question for argument.

IY. Several errors are assigned which have not been argued. The evidence fully sustains the judgment. A careful examination of the .entire case satisfies us that the record contains no error, and that the judgment should be

Affirmed.