HARVEY SPARKS, Respondent, v. T. D. KOHLER, and DAVID C. BRODERICK, Appellants, 3 Cal. 299

Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred. As has been frequently determined in cases heretofore, we cannot revise the finding of the jury upon the facts. The only question for consideration, is whether the District Court erred, in refusing to allow the two defendants to give evidence for each other.

Section 423 of the Practice Act, declares, “ A party may be examined on the part of his co-plaintiff, or co-defendant; but the examination thus taken shall not be used on behalf of the party examined, except as against the examining party.” The defendants answered separately. The issue raised by the answer of Kohler is, that the note given by him had been altered in a material part, and was therefore a forgery.

This defence, if sustained by proof, would be fatal to any recovery whatever on the paper, and neither of the defendants could properly be permitted to give evidence on this point for one another, because the defence must equally avail the party giving evidence. According to the case as made, this was the only question upon which Broderick could be called to give evidence for Kohler, and it was therefore properly decided that he was incompetent.

The answer of Broderick is a general denial, amounting to the general issue at common law, and this put the plaintiff not only upon the proof of the execution of the note, but also upon the proof of the partnership, or of the authority of Kohler to involve Broderick in the same liability. It appears also from the evidence, that this was a contested question.

It sometimes ‘happens that a witness may be competent for one purpose, and incompetent for others; and so it seems to be the case here, for although Kohler could not be allowed to testify anything which would tend to prove that the note had been altered, yet he might very well have been permitted to show that Broderick was not his partner. Upon this question, in a legal point of view, his interest would be directly in favor of making Broderick share the liability.

But in order to show error in the refusal of the court to let Kohler give this evidence, the record ought to show that he was proposed specifically for that purpose. As it appears, however, he was called generally as a witness, and being clearly incompetent as such, the court below was correct in excluding him. Judgment affirmed.