
    Harrison v. Neely.
    Under the fifth exception in Section 5242 Revised Statutes of Ohio, in an action upon a promissory note when the survivor of two joint payees and the administrator of the other are plaintiffs, an adverse party may testify to admissions made or acts done by either payee in presence of the survivor.
    Error to the District Court of Hamilton County.
    The- payees sued the makers in Hamilton Common Pleas, upon a promissory note reading thus:
    
      “ 1288.33. Cincinnati, Ohio, April 1st, 1879.
    “ One year after date we promise to pay to the order of John M. Neely and James Hulick two hundred and eighty-eight and^N dollars, with eight per cent, interest from date, payable at First National Bank of Batavia, Ohio. Value received.
    Wm. H. Harrison,
    Sarah A. Harrison.”
    The makers filed separate answers. W. H. Harrison averred, first, that the note was “ given wholly without consideration ; and second, that it was given because the payees threatened him with a groundless criminal prosecution.” Sarah alleged that the note was given without consideration; and that she was surety only. A reply to W. H. Harrison’s answer denied its averments. Hulick died, and on motion of Neely the administrator was made a party plaintiff. After this, Sarah filed an amended answer, making the following defense:
    “That at the time of the alleged making of the note in the petition set forth, she signed the same upon the sole and only consideration that the plaintiffs then claimed and represented that her son, the said William H. Harrison, defendant, had rendered himself liable to a criminal prosecution on the charge of obtaining money under false pretences, and that unless she signed said note they would prosecute her son, criminally, for obtaining the amount of said note from them by false pretences; that thereupon this defendant, upon the sole consideration of the forbearance to so prosecute and of the compounding of said claimed felony upon the part of her said son, and upon no other consideration whatever executed said note; that said consideration is illegal and void.”
    This was denied by a reply. At the trial the defendant, W. H. Harrison, was placed upon the stand, and by his attorney asked the question, “ State whether or not, prior to the signing of the note in controversy, the plaintiffs, Messrs. Neely and Hulick, called to see you at your house, in reference to the money claimed by them to be due them. by you ? ” to which the plaintiffs, by their attorney, objected, as well as to the party defendant testifying to anything that occurred in connection with James Hulick, deceased; the defendants then stated that, to maintain their defense to the action, they offered and ;were prepared to prove by said witness that Messrs. Neely and Plulick, the original plaintiffs in this action, came to Cincinnati, to the residence of W. H. Harrison on two occasions, first by themselves and secondly with their attorneys, and then and there represented to the said W. H. Harrison, one of the defendants in this action, that he had been guilty of obtaining money under false pretences and had rendered himself liable to a criminal prosecution, and that unless he gave them a note for the amount, with good and sufficient security, they would institute criminal proceedings against him. That the said Harrison then advised the said Neely and Hulick that he could get nobody to endorse his paper but his mother; and that thereupon, and at their instance, he went to his mother and represented to her that Messrs. Neely and Hulick were about to prosecute him criminally, and would- so prosecute him, and claimed that they could successfully prosecute him unless he secured her endorsement; and that thereupon she, the said Sarah Harrison, party defendant, by reason of said threats, and to save her son from the disgrace of a public criminal prosecution, and for this and no other consideration, was induced and did sign the said note upon which this action is .based. The plaintiffs objected to the admission of said testimony by the said witness, a party defendant, which objection was sustained by the court, to which the defendants excepted. The verdict was for the plaintiffs. .A motion by defendants for a new trial was overruled, and judgment rendered on the verdict. A bill of exceptions was duly made part of the record. The District Court affirmed the judgment.
    
      Glidden & Crawford and Percy Werner, for plaintiffs in error.
    
      William Disney and James C. McMath, for defendants in error.
   Granger, C. J.

Section 5242 provides that “A party shall not testify when the adverse party * * * is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person.” Following this prohibition are eight (8) paragraphs excepting certain cases from its application. Each of these exceptions authorizes the admission of testimony which would otherwise be excluded by the words above quoted. Each of these, except the fifth, is so framed as to plainly show that such is its object.

The fifth exception reads thus:

“ 5. In ah action, or proceeding, by or against a partner, or joint contractor, the adverse party shall not testify to transactions with, or admissions by, a partner or joint contractor since deceased, unless the same were made in the presence of the surviving partner or joint contractor; and this rule shall be applied without regard to the character in which the parties sue, or are sued.” Notwithstanding its form, this paragraph is one intended, as already said, to authorize the admission, in the cases named by it, of testimony that would otherwise be excluded by the first clause of the section. When the administrator of the deceased partner, or joint contractor is a co-plaintiff, said first clause excludes the testimony of the adverse party. •So also if the surviving partner, or joint contractor, claims, or defends, as heir, grantee, assignee, devisee or legatee of his deceased partner, or joint contractor. And as the last requirement of the section reads “ and when a case is plainly within the reason and spirit of the last three sections though not within the strict letter, their principles shall be applied,” it would seem that the prohibitory clause ought to be construed as applying in favor of any party who claims, or defends, under rights derived from a decedent, whether the transfer of interest be effected by the contract or act of the parties, or by operation of law. A surviving partner may sue or be sued, on firm contracts without joining the administrator or executor of his deceased partner. In such case he is the representative of the interest of his dead partner, as well as his own. The spirit of the prohibition applies fully in his favor. But exception “5” intervenes, and allows the adverse party to testify to admissions by, or transactions with, the decedent, if made in the presence of the surviving partner. Although, in terms, admitted against the interest of the surviving partner, such testimony is in effect, admitted against • the decedent; because the judgment will conclude the matter, and the survivor can only be called upon to account to the estate of the decedent for its share of the recovery if any, had. We think exception 5 should be read as if its form were similar to that of each of the other exceptions in this section; that is as a permission to admit, in the cases named, testimony otherwise excluded by the opening prohibition. Obeying at the same time the instruction of the concluding lines of the section, the following seems to.be, upon the whole the true meaning:
“ 5. In actions relating to joint contracts, or partnership transactions, the adverse party may testify to words said, or acts done, in presence of the surviving partner, or joint contractor.” We see no reason for holding that such testimony is inadmissible where the administrator of the decedent is a party. The estate is then no more interested and ■will be no more seriously affected, by the admission of the testimony, than in the case of suit by, or against, the surviving partner as such.

If the witness be allowed to state admissions made, or acts done, by the decedent, in presence of the surviving partner, there is no reason for excluding his testimony as to acts done, or admissions made, by the surviving partner himself. The spirit of exception 5 certainly includes the acts, or admissions, of both parties done, or made, in presence of the survivor.

Mrs. Harrison's answer averred that the only consideration for her signature to the note was the threat to prosecute her •son. The bill of exceptions tells us that the son would have testified to facts tending to prove the truth of this averment. The trial court ought to have admitted the evidence for the consideration of the jury. The judgments below must therefore be

Reversed.  