MARVIN EASTWOOD vs. C. E. CREECY, WILLIAM J. MURTAGH, AND BENJAMIN M. PLUMB

MARVIN EASTWOOD vs. C. E. CREECY, WILLIAM J. MURTAGH, AND BENJAMIN M. PLUMB. At Law. No. 9356. I. If a party on cross-examination asks about a matter not stated in the direct examination, this court will not for that reason reverse the judgment when the bill of exceptions does not show the answer of the witness, or that it was improper or unfavorable to the party making the objection. II. In an action by the payee of a promissory note against the maker, the latter may be examined as a witness to prove the defense of usury. STATEMENT OP THE CASE. This suit was brought against the defendants, doing business under the firm-name and style of C. E. Creecy & Co., to recover upon four certain promissory notes made by them to the plaintiff, aggregating in the sum of $1,361.10, with interest. To this suit defendants interposed the pleas of nil debit, usury, cmd never promised as alleged. Upon which pleas the plaintiff joined issue, and the case came on for trial at the May circuit term, 1873, of this court, and was sub. mitted to a jury, who, under the instructions of the justice presiding, rendered a verdict for the plaintiff. Upon the trial of the cause, the plaintiff introduced the defendant B. M. Plumb to prove the signatures of the makers of the notes, as also the names of the persons who constituted the firm of C. E. Oreecy & Co.; and the defendants upon cross-examination of this witness inquired as to the consideration given for said notes, whereupon plaintiff’s counsel objected, but the court allowed said evidence to be given to the jury, and the plaintiff’s counsel made his exceptions to the ruling of the court. On the part of the defendants the said C. E. Oreecy, one of the makers of the notes in suit, was introduced as a witness for the purpose of proving the defense of usury. The counsel of the plaintiff objected to the testimony on the ground that this witness cannot be permitted to impeach the paper to which he has put his name, but the objection was overruled and the plaintiff’s counsel made his exception thereto. The act of Congress in force in this District at the date of said notes provided that the rate of interest shall be six per cent, on verbal contracts, but that parties may agree in writing for the rate of ten per cent, per annum, and that in case of usury the interest only shall be forfeited, but the principal sum may be recovered. The verdict was for the plaintiff for the sum of $892.00, instead of $1,361,10, and interest as claimed. L. G. Sine, for plaintiff, cited as to the first exception, Railroad Company vs. Stimpson, 4 Pet., 448, and as to the second exception, Bank vs. Bunn, 6 Pet., 51; Bank vs. Jones, 8 Pet., 12, 3 How., 73. F. Trigg and William Carne for defendants. [MAJORITY] By the Court : As to the inquiry put to plaintiff’s witness upon his cross-examination by defendants’ counsel, we cannot see from the record that the plaintiff was thereby injured. The bill of exceptions does not state what answer the witness made to the inquiry, or whether he answered it at all. It is therefore impossible to say, even if the court erred in holding the question admissible, that any evidence improper or unfavorable to the plaintiff was introduced on the cross-examination objected to. There is no ground in this exception for a reversal. The principal question in the case is whether the maker of a promissory note can be examined as a witness to prove the defense of usury; and we are of opinion that where the payee sues the maker of such an instrument the latter is a competent witness to prove a failure of consideration, or that the contract was usurious. The general proposition that a party to negotiable papers will not be permitted by his own testimony to impeach it, can only be applied when the action is not between the original parties. Judgment affirmed.