Joseph D. Wade v. J. H. Eckford & Co., 28 Tex. 520

Smith, J. —We are of opinion there was error in permitting John Eckford to testify as a witness in behalf of the plaintiffs below, and for which the judgment will be reversed. He states that he was a member of the firm; that he was entitled to one-third of the profits, but that he considered there were none; that he had made an account with the firm, which he would have to pay if the other assets of the firm should be insufficient to pay the whole liabilities of the firm, except the $10,000 capital placed in the firm by John H.

Eckford; that he was only liable to pay in case of a deficiency and in proportion to that deficit; that the assets of the firm were sufficient to pay the liabilities against it, except the amount placed in the firm by John H. Eckford, who would not call upon the witness for that; and the witness did not consider that he had any interest in the result of the suit.

It is not the opinion of the witness in respect to his interest in the result of the suit that determines his com.petency to testify as a witness in the case; it depends upon the actual existence or not of the fact of any interest in the result of the suit, to be determined by the court. (1 Greenl. on Ev., § 387.) “ The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. (1 Greenl. on Ev., § 390.) His being a partner would render him liable personally for the debts against the firm; and it is quite apparent that it would be to his interest to recover the account sued for as a part of the funds or assets to be used in payment of the liabilities, and to that extent would ' diminish the proportionate part of the deficit that might ultimately be in the assets to pay the debts against the firm; and, if the amount of the fund recovered should be sufficient to pay off the liabilities of the firm, less Eckford’s $10,000 capital, the witness would not be bound to pay the account he owed the firm; at any rate, a part he would not have to pay.

And, further, if he should not realize anything in the shape of profits, still he was interested directly in increasing the amount of the funds or assets with which to pay the liabilities against the firm for which he, as a partner, is liable, and thus was directly interested in the result of the suit, and should not have been allowed to testify. The judgment is reversed, and cause Bemanded.