The case turns upon questions of evidence. *Page 344 For if the evidence objected to was competent, there is manifestly no error in the charge; and if the evidence ought not to have been received, the plaintiff was entitled to the instruction asked for, so that was simply presenting the same points in a different way, and his Honor committed no error in putting the case to the jury upon the evidence which he had ruled to be competent.
1. Mrs. McNairy's statement that she called upon Colonel Shober "in consequence of a letter received from Mr. Gilmer while in Congress, directing her to do so, and to renew her bond" was immaterial, and if anything was in favor of the plaintiff; so he has no right to complain. That fact was calculated to impress the jury in favor of the plaintiff, for if the bond was to be treated merely as a voucher, why have it renewed? This question can only be explained by the fact that on the part of the plaintiff there was no evidence that the estate had been settled, no vouchers, c., which in the management of a large estate was certainly a very loose way of doing business; and to allow one side to rely upon abond, and cut off the other side by a presumption from lapse of time so as to exclude an account, would seem to violate the maxim, "no one shall take advantage of his own wrong."
2. The objection that Mrs. McNairy ought not to have been allowed to testify as to what she told Colonel Shober at the time she renewed the bond in reference to the understanding between her and Mr. Gilmer in regard to the first bond, is a question of much more difficulty.
Mr. Gilmer being dead, Mrs. McNairy could not have testified directly as to the conversation and understanding between Mr. Gilmer and herself. Sec. 343 Cow. C. P.
But after some hesitation, we are of opinion that it was competent for her to testify as to what she said to Colonel Shober at the time she executed the bond sued on.
1. It was a part of "the res gestae." *Page 345
2. Colonel Shober is living, and could have contradicted her, which he failed to do, although called as a witness.
Assume it to be a fact that Mrs. McNairy, when she executed the bond, told Colonel Shober that there was the understanding between Mr. Gilmer and herself above set out. The legal effect of this assertion, to the agent of Mr. Gilmer, presented a question about which no instruction was asked, and which would have been difficult of solution. Direct evidence of Mrs. McNairy as to the conversation with Mr. Gilmer is incompetent — but her rehearsal of that conversation to Colonel Shober is competent. This is one of the novelties resulting from the recent changes of the law of evidence. Her telling Colonel Shober that she had held a certain conversation with Mr. Gilmer is per se no evidence of the fact, for we only have her word for it. But taken in connection with the other evidence and the circumstances of the case, we are inclined to the opinion that there was evidence fit to be left to a jury as to the allegation that this bond was to be subject to a credit or set off by reason of the amount, she was entitled to for her distributive shares on final settlement of the estate of her husband.
Mrs. McNairy's rehearsal to Colonel Shober when she executed the bond sued on, of the conversation with Mr. Gilmer when she executed the first bond per se, amounts to nothing — it is bare assertion; but connect it with the fact that Colonel Shober was the agent of Mr. Gilmer in procuring the execution of the bond. Notice to an agent is notice to the principal. So Mr. Gilmer had notice that this good lady did not consider the bond in any other light than as a receipt or voucher to be used as a credit or set off on final settlement — connect it with the fact that notwithstanding such notice, Mr. Gilmer allows the note to stand over until after his death, and connect it with the further fact that there never has been a final settlement of the estate of the defendant's husband. This tends to account for the fact that *Page 346 the note was permitted to lie over, and we see no error in the ruling of his Honor, and believe the verdict meets the merits of the case.
Had the plaintiff allowed the counter claim and asked a reference to fix the amount, justice probably would have been better administered, but he chose to stand on the law, and having taken his chances before a jury, must abide by the result.
No error. Affirmed.
PER CURIAM. Judgment affirmed.