If it be assumed that the court erred in rejecting the defendant's offer to show, on the cross-examination of Mrs. Bowen, that no consideration was paid by her husband when he took the assignment of the bond and mortgage from Adin Barden, the error was subsequently cured by the reception of testimony showing fully the consideration of the assignment. It appeared that such consideration consisted of a bond executed by Bowen, which was afterwards destroyed on his executing a second bond. The latter bond was put in evidence, and the defendant was permitted to give parol evidence of the contents of the former.
The declaration of Thomas E. Bowen, and the letter written by him, were not competent evidence. He was not an assignor of the cause of action. The suit was brought upon a promise made after his death.
The letter signed by Adin Barden was clearly inadmissible. Even if it be assumed to have been written by Mrs. Bowen — a fact which the appellant's counsel says was conceded at the trial, but which does not appear in the printed case — she wrote it as an amanuensis merely, for aught that is shown, and its contents are not her declarations. There is no conceivable ground on which the declarations of Adin Barden are admissible against the plaintiff.
The defendant offered in evidence a letter written partly by Mrs. Bowen and partly by her son, Albert T. Bowen, and it was rejected. This was not erroneous. The letter was offered as a whole. There being no question but that the assignment by Albert to his mother of his interest in the cause of action was for a valuable consideration, and in good faith, his declarations were not admissible against her or the plaintiff, her assignee. (16 N Y, 497.) A portion of the letter being therefore inadmissible, the whole, offered together, was properly excluded. (12 Wend., 504; 28 N.Y., 438.) The letter was not offered to contradict the witnesses, and no foundation was laid for that purpose.
But, aside from the foregoing considerations, the offer to prove declarations made by Mrs. Bowen or her son was properly overruled, on the ground that there was no identity *Page 439 of interest between them and the plaintiff. He purchased for value, and acquired a title of his own. As against him, their declarations were hearsay.
Nor was there any question for the jury as to whether the transfers to him were colorable merely. The question of the admissibility of the declarations offered was wholly for the court to decide.
The charge to the jury, that neither the declarations of Mrs. Bowen nor those of her son could be given in evidence against the plaintiff, furnishes no ground of exception, for the reason that it was immaterial, there being no such declarations in evidence.
That portion of the charge consisting of the comments of the judge on the nature of the contradiction between the plaintiff's witnesses and those of the defendant, was not the subject of an exception, nor was it erroneous, since it submitted the credibility of the witnesses wholly to the jury.
It was not error to refuse to instruct the jury that it was not necessary for them to find that any of the plaintiff's witnesses had sworn falsely in order to find a verdict for the defendant. It was for the jury to determine whether the conflicting testimony could be reconciled upon any hypothesis consistent with the truthfulness of all the witnesses, and justified by the evidence, or whether any of the witnesses, and which of them, had committed perjury.
I think the judgment should be affirmed.
Judgment affirmed. *Page 440