Smith v. Wagaman

Adams, J.

1. PROMISSORY note: joint makers : evidence of execution. I. The note was given for money borrowed of the plaintiff by Triplett. At the time the note was delivered to the plaintiff it bore the name of the defendant John Wagaman as joint maker with -Triplett, but Wagamau’s name did not purport to be written by himself. The note bears the name of John Wagaman, with a cross appended as for his mark. For the purpose of showing that the name was written with Wagaman’s authority, and that the mark was made by him, the plaintiff was asked, when a witness upon the stand, what Triplett said about Wagaman’s signing the note at the time he, Triplett, delivered the note to plaintiff. To this the defendant objected, and the court sustained the objection.

It is contended by the plaintiff that it was competent to show what Triplett said in regard to Wagaman’s signing the note, because what Triplett said at that time was a part of *13 the res gestae. But in our opinion the doctrine of res gestee does not go that far. If any question had been raised as to the purpose or effect of Triplett’s act in handing the note to the plaintiff, then what Triplett said about it might have been shown as giving character to the act. But the note beyond question was delivered as a promissory note. Whether Wagaman signed it or not was*a distinct and independent question, and to allow the plaintiff to testify as to what Triplett said about it would have been clearly an admission of hearsay evidence, and the testimony was, wé think, properly excluded. Binns v. State, 57 Ind., 46 ; Felt v. Amidon, 43 Wis., 467 .

2.—: evidence: cross-examination. II. Upon the cross-examination of the plaintiff, he was asked what his business was, and about how many notes he had, which he had taken for money which he had loaned. To this question the plaintiff objected, and the objection was overruled. He then stated that he loaned money, and that he probably had from fifty to one hundred notes. He contended that it was not proper to elicit «from him such testimony, because it was not in proper cross-examination, immaterial, and well calculated to prejudice him, the business of loaning money being regarded by many as not a reputable business.

The plaintiff had testified in regard to what Wagaman said about the note when the same was shown to him. The object of asking the question objected to, appears to have been from what followed, to show that the plaintiff had so many notes that his memory could not be implicitly trusted as to what Wagaman said about the note. In this view it appears to us that the question was in proper cross-examination. But aside from this view, we should not be prepared to say that the plaintiff was prejudiced. The business of loaning money, whether in large or small sums, is not in itself, so far as we are aware, regarded as disreputable.

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3. VERDICT : evidence to support.

*13 III. It is contended that the verdict is without support- in the evidence. But Wagaman testified positively that he never *14 signed the note,> and never signed any note by , „ , . • ' making a cross at the end oí his name. It appeared further that Wagaman’s name, and the cross following, were written with red ink, and Wagaman testified positively that he never signed a note with red ink. Whatever we might regard as the preponderance of the evidence, we cannot say that the verdict is wholly without support.

4. NEW trial: diligence: affidavit of. IT. A motion was made for a new trial, upon the ground of newly discovered evidence. The motion was overruled, and the plaintiff assigns the overruling as error, x 0 ° The plaintiff filed an affidavit of one Sergent, which was to the effect that he was present at, and heard, a conversation' between the plaintiff and defendant, in which the plaintiff asked the defendant if he signed the note which he showed him, which was a note for the amount of the one in suit, and had Wagaman’s name signed to it in red ink, and that Wagaman admitted that he signed it.

He also filed an affidavit of one Barnes, and an affidavit of one Baker, which were to the effect that they were present at, and heard, a conversation between plaintiff and defendant,» in which the fact of Triplett’s failure to pay the note in suit was spoken of, and Wagaman acknowledged his liability, and asked for time.

The plaintiff filed an affidavit made by himself, in which he stated that he recollected that certain persons were present at the conversations, but was unable to ascertain their names until after the trial, though he made every exertion to do so.

The plaintiff himself had testified to what was said at these conversations, and the defendant contends that the alleged newly discovered evidence is merely cumulative. We have not deemed it necessary to consider this question, because it appears clearly to us that the plaintiff’s affidavit does not show that he had exercised due diligence. It shows that the plaintiff made inquiry to ascertain the names of the persons whom he remembered were present, but it does not show of whom he made inquiry. One Stewart testified that he was *15 present and beard one of tbe conversations, but plaintiff’s affidavit does not show that be made any inquiry of Stewart. The defendant was present at both conversations, if they took place, and tbe plaintiff’s affidavit does not show that be made any inquiry of him.

In our opinion tbe court did not err in overruling tbe motion for new trial, made on tbe ground of newly discovered evidence, and tbe judgment must be

Affirmed.