
    Wilmot, and others v. Richardson, and others.
    A person, not a party to the action, and who is rendered incompetent as a witness hy reason of an agreement, subsequent to the transactions in question, making him a partner of one party as of a date prior to their occurrence, may he rendered competent hy an absolute assignment of all his interest in the subject matter of the action and in the business of his firm down to the time he actually became partner, on being also released by his partner from all liability to contribute by reason of the claim made in the action, and on being fully indemnified against any liability connected with said claim or action.
    The plaintiffs contracted to sell to one Patterson flour, and delivered to him one thousand eight hundred and ninety-seven barrels, and the defendants advanced to him, in good faith, on that and other flour, amounting in all to eight thousand one hundred and sixty-four barrels, large amounts from time to time, and consigned the whole to their Liverpool house. The plaintiffs, claiming that they hhd been induced to sell to Patterson hy fraud on his part, after a discovery of the alleged fraud, and with knowledge of the advances made by the defendants, and of their claims by reason thereof, and of such shipment of the flour, received an order, drawn hy Patterson on the defendants, for the net proceeds t>f the eight thousand one hundred and sixty-four barrels of flour, less, the defendants’ advances and charges, delivered such order to the defendants and received their written acceptance thereof, and, when such flour had been sold, received of the defendants and receipted for the net proceeds thereof and in full of such proceeds, as per their acceptance of Patterson’s said order.
    
      Held, that these acts amounted to a ratification of the transactions between Patterson and the defendants, and that'thereafter the only liability of the defendants to the plaintiffs was such as arose out of the written acceptance of Patterson’s order, and the agreement contained therein.
    The fact that the defendants had bad other large transactions with Patterson prior to the one in question, was not competent testimony upon the trial of the issue, whether the defendants acted in good faith in the transactions in question. It was irrelevant, and its admission erroneous.
    A witness, whose character has been impeached, cannot be supported by the testimony of a person who saw him for some six months, twelve years prior to the trial, and who had not subsequently seen him until within sixmonths of the trial, and had never heard him spoken of one way or the other, to the effect that, he considered him a credible Witness. To receive such evidence against objection and exception is erroneous.
    (Before Duer, Bosworth and Woodruff, J.J.)
    December 5, 1856;
    February 14, 1857.
    This action comes before the court on exceptions taken by the defendants at the trial, and there ordered to be heard, in the first instance, at the General Term.
    John Wilmot and Company are the plaintiffs, and do business in the city of New York. The firm of Thomas Richardson & Co., are the defendants, and do business in the same city; that firm consists of Thomas Richardson, James Spence, and Edward H. Patón. The defendants also did business at Liverpool, under the firm name of Richardson, Spence & Co. Samuel Nimmons became a partner subsequent to the transactions in question, but at the time thereof, had no interest in the business of the defendant’s firm.
    The complaint alleges that one Walter Paterson, in May, 1854, bought of J. Wilmot & Co. 1897 bbls. flour, for $15,104.87, to be paid in cash on delivery, representing that it was for Thomas Richardson & Co., and that they “were to advance the cash for the same.” That J. Wilmot & Co., on the 11th of May, delivered the flour on board ship, and on the 12th of May handed ship’s receipts to Patterson, relying on his promise to get the money from Thomas Richardson & Co., and at once pay it over. That on the 13th of May, Patterson paid $5000, stating that Thomas Richardson & Co. refused to advance as they had promised. That Thomas Richardson & Co. had already received the ship’s receipts from Patterson, and J. Wilmot & Co. on same 13th of May, threatened them to stop the flour; but they replied that the ship had already sailed, and that they need not be alarmed, as the money would be paid. That this threat and response were repeated on 15th of May. That J. Wilmot met Patterson by appointment, at Thomas Richardson & Co.’s office, May the 17th, to receive the money, when Richardson, claiming to be busy, requested them to call at 12 o’clock. That Wilmot called, accordingly, but, in the interim, Patterson had been suddenly induced, by Thomas Richardson & Co., to sail, and had sailed, for Europe. That - Thomas Richardson & Co. then offered to pay John Wilmot & Oo. the balance which might be due from them to Patterson, if released, which offer John Wilmot & Oo. declined. That Thomas Richardson & Oo. subsequently made certain payments, leaving a balance of $7648.96. That Thomas Richardson & Co. knew all the facts, and contrived this method of obtaining payment of a prior debt from Patterson.
    The defendants’ answer first puts in issue the whole com-, plaint, except the existence of their own firm, and that Wilmot and Patterson called when Richardson was busy, at about 10 o’clock, A. H., on 17th of May.
    The defendants answered, secondly, that they agreed to advance Patterson $7 per barrel on flour shipped by him to Richardson, Spence and Oo., of Liverpool; that between 28th April and 12th óf May, 1854, he accordingly shipped 8164 barrels flour, and delivered the bills of lading, &c., to Thomas Richardson & Co., and took the following advances:
    1854, April 29, . . . . . . . $19,000 00
    May 1, . . . . . . . 3,388 00
    “ 3, . . . . . . . 5,000 00
    “ 8, . . . . . . . 5,000 00
    “ 9, . . . . . . . 13,279 00
    “ 10, . . . . . . . 5,329 90
    “ 12, . . . . . . . 6,651 10
    That on the 17th of May, 1854, they accepted Patterson’s order in favor of Jno. Wilmot & Co. for the net proceeds of the 8164 barrels of flour, after deducting advances and charges, and that subsequently, on September 13th, 1854, they paid over such net balance to Jno. Wilmot & Oo., taking their receipt, expressed to be “ balance in full of preceeds of sales of flour, as per your acceptance of Walter Patterson’s order in our favor.”
    That Thomas Richardson & Oo. acted in good faith, in the usual course of business, without knowledge whence the flour was obtained, and that, “ with full knowledge of all the circumstances,” Jno. Wilmot & Oo. sued Patterson for the price of the flour.
    It was proved that, on May 5th, 1854, J. Wilmot & Co. sold to Patterson 1897 barrels of flour, at $7.93f per barrel; total price, $15,104.87, for cash, on delivery of ships’ receipts. 200 barrels were sent by them on board of the Dacotah, and 1697 on board the Washington. Hull, a witness for the plaintiffs, testified that the ship’s receipts were obtained on May 12, and further, that on that day, Patterson sent McKeon, his broker, for them; that Mr. Wilmot declined at first to give them up, but gave them to McKeon on being informed that “ Patterson said he could not pay for the flour till he got the receipts, asthey hadconsignedit to Thomas Richardson & Co., and they would not give the money till he got the receipts.” He also swore that he, Hull, gave the receipts to McKeon, and told him to go with Patterson, and not to deliver the receipts till'he got the money.
    Patterson was also sworn for plaintiffs, and testified that it was a purchase for cash, which by the usage, meant cash when called for. That Wilmot knew he was consigning flour to defendants’ Liverpool house and getting advances. That he received $13,279 as an advance on this flour, on the 9th of May, and delivered the bills of lading on the 12th of "May. Supposed he promised the bills of lading when he received the advance. That he gave them the invoice on or before May 9, 1854.
    On 16th of May, 1854, Thomas Richardson & Co. rendered to Patterson a complete and true account of their dealings and advances ; and on the morning of the 17th, Wilmot saw and took a copy of it. After this, and on 17th of May, Jno. Wilmot & Co. obtained from Patterson an order on Thomas Richardson & Co. for surplus proceeds of 8164 barrels of flour, and on same day obtained Thomas Richardson and Co.’s acceptance of it. The account sales of the Liverpool house were given in evidence by the plaintiffs. And it was proven that Jno. Wilmot & Co. received from the defendants, and receipted for the net proceeds according to the order and acceptance, as stated in the answer.
    Eleven witnesses testified that Hull was of bad reputation and unworthy of credit. The Judge at this point refused to hear any more impeaching testimony, and after some supporting proof, refused again. Defendants excepted to each decision.
    The bill of lading for the 200 barrels, per Docotah, was signed May 8, 1854. Those 200 barrels were insured by Thomas Richardson & Co., May 3, 1854; and the 1697, by the Washington, were insured May 8, 1854.
    
      Patterson did not pay J. Wilmot & Co. their whole demand. By some unexplained means he became embarrassed after he purchased, and conceiving that it would be some advantage to him, or for some other reason, concluded to go Europe. He did so on 17th May, at noon. J. Wilmot became alarmed on the 16th of May, and on the morning of 17th May, went with Patterson to Thos. Richardson’s to see what security could be got. Patterson concealed from Wilmot his intent to go Europe.
    An unsuccessful attempt was made to prove that Thos. Richardson & Co. connived at this secrecy and advised the departure.
    Patterson had known Thomas Richardson & Co. five or six years, and had known J. Wilmot and Co. only some weeks. And, by way of raising an inference of some fraud or collusion, the plaintiffs were allowed to prove that Patterson had had extensive dealings with the defendants; to which the defendants excepted.
    Patterson himself testified that the purchase from J. Wilmot & Co. was without any particular stipulation as to the time of payment. He also testified, that when he purchased the flour, and received the ships’ receipts, he honestly intended to pay. McKeon, the broker, being absent in Europe, was not examined. Patterson was not asked any questions tending to confirm Hull’s statement as to the mode of obtaining the ships’ receipts, or any special delivery of them; and he expressly swore that he never made any false or deceitful representations to the plaintiffs.
    The plaintiffs proved by Patterson, that when he went to Liverpool, the defendants’ house there seemed to expect him. He had mentioned it to defendants’ clerk in Hew York, (perhaps at the last moment). And the defendants offered to read the letter of their„Hew York house to the Liverpool house, on the 17th, stating the fact. The court excluded it, and the defendants excepted.
    On the 20th of May, 1854, the plaintiffs prosecuted Patterson, by attachment on contract, in the Supreme Court, for the price of the flour. J. Wilmot’s affidavit, in that case, sworn on that day, stating the sale and delivery of the flour to Patterson, was given in evidence. The fraud alleged was, in secretly departing with intent to defraud J. Wilmot & Co., and other creditors, or avoid process.
    Thé Judge, in the course of his charge, said,-that “on a fair ■ consideration of the evidence, there was no fraud on the part of the defendants, nor on the part of Patterson, in making the purchase.”
    He put the plaintiffs’ claim to the jury on the point of a conditional delivery. He said that defendants had acted indiscreetly in parting with their money three days before they received the bills of lading; that if they had paid over the money after receiving the bills of lading they would not be chargeable.
    In instructing the jury as to a conditional delivery, he presented the question thus: “ Did plaintiffs part with the possession of the receipts with the understanding that Patterson should do with them as he pleased, or with the understanding that he should get the money and pay for the flour ? If the latter, the sale was conditional ; if the former, it was absolute.” To each of these definitions of, or instructions as to, a conditional sale or delivery, the defendants excepted.
    On a motion for a nonsuit, the defendants insisted that both the complaint in this action and the affidavit in the attachment suit alleged an unconditional delivery, and that, in the absence of any evidence of fraud in the contract, the plaintiffs could not recover. The point was overruled, and the defendants excepted.
    The defendants requested the Judge to charge as follows:
    “ Second. If the plaintiffs sold the goods for cash on delivery, and afterwards delivered them on board, and also delivered the shipping receipts to Patterson unconditionally, such delivery was a waiver of any lien for the price, or any right to avoid the sale or to reclaim the goods, unless Patterson practised some fraud in obtaining the contract or in obtaining the delivery.
    “ Third. If the jury do not believe that the ships’ receipts were obtained by any of the means or pretences, stated by Hull as having been made by Patterson or McKeon for that purpose, there is not any other evidence in the case from which they could infer that any fraud was practised in obtaining the delivery of the ships’ receipts.
    “ Fourth. H Patterson, after the 12th of May, 1854, for the first time designed to go to Europe, and determined to conceal such intent, in order to avoid arrest, those circumstances would not constitute a fraud against the plaintiffs, or in any way affect the issue in this case.
    
      “ Fifth. If, on the 17th of May, 1854, with knowledge of the representations on which the ships’ receipts are alleged to have been delivered by them, and after seeing, by the account dated May 16, 1854, that the advances on the flour in question had been made on the 9th of May, the plaintiffs received the order on Thomas Bichardson & Co., for payment out of the net proceeds of their sales, caused such order to be delivered to the defendants, received the written acceptance thereof, and received and receipted for the net proceeds, such acts amount to a ratification o,r confirmation of the transactions between Patterson and the defendants, and, consequently, the plaintiffs cannot recover.”
    The court refused to give any of these instructions, and the defendants excepted.
    On the point of ratification he stated the facts, and charged thus:
    “ The fact you are to decide is, Whether or not Wilmot ratified the sale. If you believe that it was understood that Wilmot should receive this balance in full of his claim, then he is bound; if he did not intend to give up his claim, he is not bound.”
    To which submission of the point to the jury the defendants excepted.
    The verdict was for the plaintiffs, for $8160.77.
    The following points on the reception of evidence arose at the trial.
    The defendants called seven witnesses to support the character of Hull. Two of them knew nothing of his reputation, and could not say whether it was good or bad, but they were permitted to answer the question: “Do you consider him a credible witness?” To this decision the defendants excepted.
    The defendants offered as a witness, Samuel Nimmons. He was a clerk of Thomas Bichardson & Go. at the time of the transactions in question, but was subsequently admitted as a partner, by a retro-active agreement, from a period previous to these transactions.
    He was objected to as incompetent, and excluded. The defendants excepted.
    The defendants then gave in evidence their release of said Nimmons from any contribution to the claim in this action, and also a bond of indemnity to him, with sureties, admitted to be sufficient, against any liability connected with said claim or action, and also an assignment by Uimmons to the defendants, of all his interest in the flour aforesaid and its proceeds, and in the business of the copartnership, prior to the time of his actually becoming a partner. The Judge, nevertheless, ruled that said Uimmons was not a competent witness, and on his being again offered, excluded him. The defendants excepted.
    The questions of law arising upon the exceptions taken at the trial, the court there ordered to be heard in the first instance at the General Term, and the entry of judgment to be in the mean time suspended.
    
      jEdwards Pierrepont, for plaintiffs.
    
      C. O’Connor and J. P. Martin, for defendants.
   By the Court. Bosworth, J.

Was Himmons rightfully excluded from testifying? He was not a partner of the defendants at the time of the transaction in question, nor had he any pecuniary interest then in the business of the firms of which they were members. The agreement of the 13th of October, 1854, creates the only objection raised to his competency as a witness; that was executed after the property in question had been sold by the defendants, and the proceeds of it had come into their hands.

If the question of his admissibility was to be determined by the rules of the common law, why was he not a competent witness when he was last offered ?

At that time, he had assigned to the defendants, all his interest in the defendants’ firm, as to all business transacted prior to the 23d of October, 1854. The defendants had released him from all liability to contribute towards the payment of any judgment the plaintiffs might receive, or for the costs or expenses of this action. They had also fully indemnified him against all liabilities and claims, to which he could be subjected by reason of this action, or of any thing growing out of it, and against all damage by reason of his liability to contribute to pay any judgment that might be recovered in this action, or to pay any part of the ex-pensés thereof, or of the claims and demands of the plaintiff.

After those papers had been executed and delivered, it is difficult to perceive why his legal position was not precisely the same as it was before that agreement was made. From that moment" he ceased to have any interest in the result; whether the defendants succeeded or failed, was a matter of indifference to him in a pecuniary point of view.

Excluding the provisions of the Code, I think he was a competent witness, and that his rejection was an error which entitles the defendants to a new trial. (Clarkson v. Carter, 3 Cowen, 85; Lifferts v. De Mott & Ingersoll, 21 Wend. 136; Small v. Mott, 22 Wend. 403; Gregory v. Dodge, 14 Wend. 593 ; Lake v. Auborn & Hodgkins, 17 Wend. 18; Benedict & Lothrop v. Hecox, 18 Wend. 490).

It will not be seriously contended, that it was the object of the Code to increase the causes of incompetency to be a witness; on the other hand, it declares that a mere interest in the event, no matter how clear and direct, shall not render any person incompetent to testify, unless he be a party to the action, or one for whose immediate benefit it is prosecuted or defended. (Code, §§ 398, 399).

The Code retains the rule, that an interest in the event, shall disqualify, when the person offered as a witness is a party to the action, or if it is prosecuted or defended for his immediate benefit.

Such an interest excluded persons before the Code. By the pre-existing rules, a person for whose immediate benefit an action was prosecuted, if not a party to it upon the record, could be rendered a competent witness; that was expressly decided in Lake v. Auborn & Hodgkins, supra.

Without pursuing this question further, we think it quite clear, that as Nimmons was rendered incompetent to testify, solely by reason of the agreement of the 13th of October, 1854, that interest was wholly divested by the papers executed and delivered before he was last offered. From that time his position, in contemplation of law, was exactly the same that it was before the agreement of the 13th of October was executed, and he was a competent witness.

Next, as to the question of ratification. Patterson bought of the plaintiffs, 1897 barrels of flour. They had no interest in the residue of the flour, on which the defendants had advanced to Patterson. The defendants had made advances on 8164 barrels, all of which had been shipped to Richardson, Spence & Co. Before the 17th of May, the plaintiffs had in their possession, an account rendered by the defendants to Patterson, showing the transactions between them, the dates and amounts of their advances, and the number of barrels on which the defendants had advanced.

With full knowledge of all the frauds now alleged, (except the pretended fraud of Patterson’s going to Europe at the instigation of, or by connivance with some one of defendants’ firm) thejr received Patterson’s order on the defendants, to pay to the plaintiffs the proceeds of the 8164 barrels, less the advances previously made by the defendants upon it, and their charges. Before this was accepted, Patterson’s assent, written at the foot of the order, that no further advances should be made, by the defendants, unless by the consent of the plaintiffs, evidenced by their written order, was procured. The plaintiffs received this, with the written acceptance by the defendants of Patterson’s order.

By this act the plaintiffs certainly waived all right to claim that a sale of the flour by the defendants would be a tortious act, which would render them liable for a conversion of the flour. They assented to a sale of so much of the flour as had belonged to them, and obtained an agreement that they should be paid the proceeds of not only that flour, but of six thousand two hundred and sixty-seven barrels in addition, to which they had no right, less advances and charges.

The flour has been sold as that arrangement contemplated, and the whole proceeds of the flour have been paid to, and accepted by, the plaintiffs, in full performance of that arrangement.

Before the defendants accepted this order, they had refused to accept a draft drawn on them by Patterson, in favor of the plaintiffs, for $10,000, at sixty-five days from May 17, 1854. The defendants claimed to have advanced on the security of the flour, in good faith, with no notice of any facts which should induce any person to doubt the title of Patterson,-or the good faith of his transactions with those of whom he had purchased the flour. Under these circumstances, the plaintiffs accepted the three papers' before mentioned; viz., Patterson’s order on the defendants; an acceptance of it by the latter, and Patterson’s written consent that the proceeds should be paid to the plaintiffs, or to their order. Is' this transaction to have any effect, and, if so, what? If it does not amount to an abandonment of all claims upon the defendants personally, except under their written acceptance of Patterson’s order, then it,is not only of no benefit to them, but is prejudicial to their rights. By the verdict they are charged, not only with the actual proceeds of the one thousand eight hundred and ninety-seven barrels of flour, but with the exact price which Patterson agreed to pay the plaintiffs for it. The defendants, as the case has resulted, have been made to pledge the proceeds of the whole eight thousand one hundred and sixty-four barrels over and above advances, as security to pay what Patterson was owing the plaintiffs, and are held personally liable to pay the balance of the contract price. This result has been effected upon evidence which, being fairly considered, does not tend to prove any “ fraud on the part of Richardson, nor on the part of Patterson, in making the purchase.” So the Chief-Justice instructed the jury.

In the absence of fraud, either of Patterson or of the defendants, in the transaction, we think that the acts of the parties on and after the 17th of May, amount to an agreement between them, that the whole flour on which the defendants had advanced, should be sold by the persons to whom it had been consigned, and that the defendants might retain' out of the proceeds the amount of the advances which they had made on the security of the flour, and their charges, and that the balance of the proceeds should be paid to the plaintiffs. The advantage secured to the plaintiffs, was the contract of the defendants to pay to the former the whole net proceeds, beyond the advances and charges. This agreement has been fully executed on the part of the defendants. Any undeclared intent of the plaintiffs, in entering into the arrangement, cannot affect its legal operation, nor impose upon the defendants, or continue any liability on their part, which, in the absence of any such intent, would not exist. (Freeman v. Spaulding, 2 Kernan, 373.)

The affidavit made by John Wilmot, on the 2Qth of May, 1854, the third day after this arrangement between all the parties, afi firms that the sale and delivery to Patterson were absolute, an express promise by Patterson, subsequent to the delivery, to pay on the 17th the full contract price, and a failure to perform his promise. That affidavit was made to procure an attachment against the property of Patterson. An attachment can be issued only in an action for the recovery of money. (Code, § 227.) An affidavit which can authorize one to be issued, must show that a cause of action exists against the defendant. The cause of action stated in this affidavit, arose on contract, for goods sold and delivered to Patterson.

Without stopping to inquire whether the plaintiffs, after having instituted a proceeding to seize the property of one of the parties to this transaction, on an unqualified affidavit of an unconditional sale and delivery, are precluded from asserting the contrary, as a basis of different remedies, it is clear that the affidavit furnishes very strong evidence against the plaintiffs that the order of Patterson, as accepted by the defendants, was taken as a settlement of all claims of the former against the latter, except such as might justly be based upon the acceptance itself.

We think the defendants had a right to have the jury instructed in the terms of their fifth request, and that the instruction, that if Wilmot “ did not intend to give up his claim, he is not bound,” was erroneous. Some questions of minor importance, in relation to the admission of evidence, remain to be considered.

It is not apparent that the fact that the defendants had been in the habit of making advances to Patterson, or the fact that he had or had not made purchases from the plaintiffs prior to this, tended to throw any light upon the actual character of the transaction in question, or that they would authorize any inferences by the jury, in relation to the truth of the matters at issue, which they could not have made if no such facts had been proved. This evidence was received against the objection and exception of the defendants.

It is not easy to perceive on what principle its admission can be justified. The evidence being incompetent, and the defendants having excepted to its admission, an error was committed which entitles the defendants to a new trial.

Murray v. Smith, (1 Duer, 412,) was reversed by the Court of Appeals solely on that ground, although, in the opinion of the court, the evidence excepted to ought not to have influenced the verdict of the jury. When improper evidence has been given, and its reception was excepted to, the court will not, on a bill of exceptions, attempt to speculate as to its probable effect upon the conclusions of the jury, unless it can clearly see that it could not have had any influence upon them in forming their verdict.

We do not see that we can say this evidence might not have prejudiced the defendants’ case in the estimation of the jury.

The character of a witness on the part of the plaintiffs was thoroughly impeached, if credit is to be given to the impeaching witnesses. A supporting witness, who saw him for some six months, twelve years prior to the trial, and who had not seen him since then until within six months of the time of the trial, and .who had “never heard him spoken of one way or the other,” was allowed to testify that he considered him “ a credible witness.” To the admission of this evidence the defendants objected and excepted.

This decision cannot be sustained, unless it be a sound rule that a witness whose character is impeached may counteract the effect of the impeaching evidence by proof that, in the opinion of others who have but a slight acquaintance with him, and never heard him spoken of one way or the other, and who know nothing of his general character, he is a credible witness.

I presume no one holds the opinion that a witness can be impeached by the testimony of persons who really know nothing of his general character, and never heard him spoken of, that they do not consider him a credible witness. If such evidence is incompetent for the purpose of impeaching a witness, I think it equally so to sustain one who has been effectually impeached. In such cases, general character is the broadest form of inquiry admissible. Particular offences or vices cannot be proved or disproved.

The practical question is, has the witness such a want of moral character, taking the character which he has acquired among those who know it as the standard, that others cannot credit what he may say ?

We think the evidence received to sustain the character of the impeached witness was improperly admitted, and that on that ground also the defendants are entitled to a new trial.

The verdict must be set aside, and a new trial ordered, with costs to abide the event.  