Ede Whitaker versus Benjamin Salisbury, Junior, 15 Pick. 534

Putnam J. delivered the opinion of the Court. The verdict was for the defendant upon the issue of non est facturn ; but the plaintiff moved for a judgment upon the issue of non assumpsit, which was found in his favor, notwithstand ing the verdict for the defendant upon the issue of non est factum. If the indenture were legally proved to ne the deed of the plaintiff, yet if it was not a good bar to the action, the issue joined upon it would be immaterial, and the plaintiff would be entitled to judgment non obstante veredicto , but otherwise it should be given for the defendant.

We have therefore considered and determined the question touching the legal operation of the indenture, if it were legally proved to be the deed of the plaintiff. Whitaker, contrary to his covenant, has sued this action to recover of Salisbury, the money due upon two notes of Stimson & Salisbury. If Whitaker should recover against Salisbury, Salisbury would immediately have a right of action against Whitaker and Truesdell, the surviving covenantors, to recover back the money ; and the judgment, though joint, might be levied on Whitaker alone.

We are all clearly of opinion, that Whitaker is rebutted by his covenants of indemnity in his deed. The law will not allow such a circuity of action as would result from a contrary decision upon this point. It appears that substantially the matter in dispute is between Whitaker and Salisbury ; because Whitaker has released Truesdell from all claim for contribution upon the indenture ; so that if Whitaker should pay the whole money back to Salisbury, no part of it could be recovered by him from Truesdell; and it is agreed that Austin Stimson is dead, and his estate insolvent.

The indenture therefore, if legally proved to be the deed of Whitaker, is considered by the Court as a good bar to this action. We are of opinion, that the writing on the back of the instrument, indorsed after it was executed by Whitaker and Truesdell, was no part of the deed. It was an agreement which affected only Austin Stimson and Salisbury, who subscribed it. It. was not sealed, and it made a provision which the law would imply without any express agreement, viz. that the errors in the accounts which should be thereafter ascertained, should be rectified.

We think it did not affect the rights or liability of Whitaker or of Truesdell. And the ruling of the judge was correct, that the possession of the instrument was prima facie evidence of the delivery, so as to throw upon the plaintiff the burden of proving that this possession was wrongful. We think, that neither of the presumptions, which were set up by the plaintiff and stated in the report, arose in such manner as to relieve the plaintiff from the burden of proving that the instrument was put into Stimson’s hands on condition, and that the condition was communicated to Salisbury.

It was contended by the defendant, that the evidence given by Truesdell, tending to disprove the delivery of the deed, was inadmissible, because it was for his interest to destroy the deed. But it may be that the indenture was the deed of Whitaker notwithstanding it may not have been delivered by Truesdell. If Truesdell should give evidence to satisfy the jury that Whitaker did not deliver the deed, and the plaintiff should recover, and Salisbury should sue Whitaker and Truesdell upon their covenants of indemnity, the verdict in this case could not be evidence in that.

So we think that so far as it regards the evidence given by Truesdell, disproving the deed on the part of Whitaker, it would be an interest in the question, rather than an interest in the event of this cause. The verdict (as has been observed) would not be evidence for Truesdell, if he were sued by Salisbury upon the indenture. Whitaker, and not Truesdell, is a party to this suit and record. But there is another view in which this question may be considered. Truesdell is called by the plaintiff. Now if the witness should prove that the deed was delivered by Whitaker, it would be a good bar to this action.

If the deed be established, the plaintiff could not recover ; and the supposed liability of Truesdell to Salisbury would be destroyed, inasmuch as Salisbury would have no cause of action against Truesdell, unless the plaintiff recovered. It would be for his interest, in this action, to prove the execution and deliver} of the deed by the plaintiff. But the plaintiff calls him to disprove it. If he should testify as the plaintiff desires, it would be evidence against his interest. We think the judge did right to admit his testimony.

It was contended by the defendant, that, inasmuch as Enos Stimson junior (whose name appears upon the indenture as a subscribing witness) did not see Whitaker and Truesdell and Austin- Stimson execute it, but only saw the defendant execute it, and inasmuch as the defendant had no confidence m the testimony of Enos Stimson junior, therefore he ought by law to be permitted to prove the handwriting of the other parties to the deed. But we all think that the rule requiring the testimony of the subscribing witnesses to deeds, if to be procured, cannot be dispensed with.

What, it is to be presumed from their having subscribed as witnesses, they would testify if called, cannot be supplied by the statement of the other party, or by evidence of the handwriting of the parties charged. Non constat from the indenture, produced by the defendant himself, but that the witness did see all the parties execute the same. The party who would establish a deed, must lay his groundwork by the production of the subscribing witnesses, if their testimony can be obtained.

If they fail to establish the execution of it, the party who thus calls them, by a positive rule of the law, is not to be concluded by their testimony ; but will be permitted to establish the fact by other evidence. “ It would be contrary to justice, that the treachery of a witness should exclude a party from establishing the truth by the aid of other testimony.” 1 Stark, on Evid. 147. We all think, that the judge was right in requiring the defendant, who desired to set up the deed, to call the subscribing witness, (who was present in court,)' before the introduction of any other evidence to prove the deed.

The next question for consideration is, whether the defend ant had a right to impeach the general character for truth, of the witness, who was called by the defendant. This question was considered as settled in the case of Brown v. Bellows, 4 Pick. 194. It has been contended-however for the defendant, that there is no more reason for disproving or contradicting the particular evidence, which a witness may have given, by the party who called him, than there is for im peaching his general character. The objection is more ingenious than solid.

If a party, who calls a witness to prove a particular fact, be disappointed in the result of the testimony, it is competent for him to prove the fact by other testimony. 3 Stark, on Evid. 1692, and the cases cited by defendant. It may be that the party who calls the witness has been misinformed, and that the witness testified truly, although not according to the expectation of the party who called him, and therefore the testimony of another witness, establishing the fact which the party attempted to prove'by the first witness, may be true and perfectly consistent with the veracity of the first witness.

It does not necessarily follow, that there was perjury committed by the first witness. The fact is to be established by competent evidence ; and it would be evidently a rule that would operate with great injustice, that a party calling a witness should be bound by the fact which was sworn to. No one would contend for a rule so inexpedient. But when a party calls a witness whose general character for truth is bad, he is attempting to obtain his cause by testimony not worthy of credit. It is to some extent an imposition upon the court and jury.

The law will not suppose, that a party will do any such thing; but will rather hold the party calling the witness, to have adopted and considered him as credible. If this were not so, it would be in the power of any party merely by putting a witness upon the stand, to blacken and defame his general character for truth, whenever the evidence should fall short of what was wanted. We all think there must be a new trial, because the defendant, who called the subscribing witness, was allowed to offer evidence to impeach his general character for truth