
    EDWARD JONES, Appellant, v. G. B. POST, GEORGE T. UPHAM & JOSEPH A. POST, Respondents.
    
      
       Witness, Coméetenos oe, — Sections 392 and 393 of the Practice Act are to be construed so as to exclude testimony, when the witness would be directly benefited by it.
    Appeal from the Fourth Judicial District.
    This was a suit upon a bond for $7,725, executed by defendants to one Wood, and assigned by Wood to plaintiff. It was conditioned for the delivery of 3,000 sheep, sold by one Thompson to Wood. The defendants denied all the allegations of the complaint.
    Upon the trial it was admitted that the bond and contract were duly executed, and that Wood had paid Thompson $3,862-50 on account of the contract, for the sale of the sheep; that Wood, believing Thompson had not complied with his part of the contract, had given notice to defendants, as the agents of Thompson, that the contract was rescinded. Plaintiff proved that Wood assigned the bond and contract to him. He then offered “Wood as a witness to prove the failure of Thompson to deliver the sheep according to the contract.
    The defendants then moved the Court to reject the evidence of Wood, and to nonsuit the plaintiff, both of which motions the Court granted, and plaintiff appealed.
    
      Lockwood & Hammond, for Appellant.
    
      Hackett & Judah, for Respondents.
    
      
       Cited in Griffin v. Alsoa, post, 408; Jones v. Post, 6 Cal. 102; Ford v. Hendricks, 34 Cal. 675; Howland v. Aitch, 38 Cal. 135.
    
   *Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

This appeal is prosecuted from a judgment of nonsuit. On the trial of the cause, which was an action upon a bond, conditioned for tbe performance of a contract, Wood, tbe original obligee, was admitted as a witness, and testified that he bad assigned bis interest in said bond, and all tbe rights appertaining thereto, to tbe present plaintiff, to secure an indebtedness from him to tbe plaintiffs, and that any judgment which tbe plaintiff might obtain would go to satisfy such indebtedness, and tbe overplus, if any, would properly belong to bis other creditors or himself. The Court afterwards struck out tbe testimony of Wood, and entered a judgment of nonsuit.

We have repeatedly given a judicial construction to tbe 892d-3d section of tbe Practice Act, and, according to tbe rule heretofore laid down, tbe testimony was properly excluded, as it was shown that tbe witness would be directly benefited by it, in having whatever judgment was recovered applied to tbe payment of bis liabilities.

Striking out bis testimony, there is no evidence to establish tbe fact that Thompson agreed to deliver tbe sheep at the time they were demanded, or that this portion of tbe contract was violated in any manner by Thompson.

This disposes of tbe case, and renders it unnecessary for us to determine whether tbe undertaking executed by tbe defendants is within tbe Statute of Frauds or not.

Judgment affirmed.  