James B. Edwards, plaintiff in error, vs. Neill McKinnon, defendant in error.
A witness is competent to testify, who has no certa.n interest in the event of tfca* suit, and where the judgment in the case cannot be given in evidence, either for against him, in a subsequent suit against himBelf.
Certiorari, from Thomas county. Decided by Judge Love, December Term, 1857.
An action was brought in a Justice’s Court by Neill Mc-Kinnon, against James B. Edwards, for $50, for hauling a «team engine, boiler and fixtures, for a steam mill, from'New'-port to Thomasville. >'
*338Upon the trial, the plaintiff introduced as a witness, Henry Cherry, who testified, that between himself and James B Edwards there was an agreement that Edwards was to furnish the said Cherry an engine, for the purpose of starting a mill, and that the profits of the mill, after supporting his (Cherry’s) family, and paying expenses, was to go to Edwards, to pay the purchase money and interest, and upon the payment of which, the title of the property was to be in Cherry. The engine was bought by Edwards, and shipped1 from New York to James B, Edwards, Newport, care of Daniel Ladd. He (witness) made several efforts to get a wagoner to haul said engine to Thomasville, and finally obtained the service of the plaintiff. The engine being subject to Mr. Edwards’order, at Newport, and not to his, (witness/)lie (witness) got an order from the defendant for the delivery of the engine to the plaintiff, which was done, and the engine was hauled up to Thomasville, as was agreed upon by the parties. Fie (witness) tried to borrow money to pay for the hauling. After operating said machinery for a short time, some part of it broke, so that it became necessary for him (witness) to go to Newport to have it repaired, and hay-ring no money, Mr. Edwards furnished money for said repairs. After starting again, it was found that something more-was necessary in the way of repairs; Edwards becoming dissatisfied, witness proposed that Edwards should sell the engine, which was afterwards done by Edwards, to C. G. Moore; witness told Edwards that the engine could not be sold until the freight was paid for the hauling.
The defendant objected to the admission of this evidence,, on the ground that Cherry was an interested party. The ' Court overruled the objection and admitted the testimony.
James Mien testified, that Cherry applied to him to know where he could get a wagon to haul up his engine, and also where he could borrow $50 to pay for said hauling, and asked witness to loan him the money.
C. G. Moore testified, that he bought from James B. Ed*339wards the engine; Mr. McKinnon met witness in the street and asked him if he had bought the engine; witness replied that he had, and McKinnon told him that he had a claim on it for hauling the engine for Cherry, and that he had been to seeMr. Edwards to get paid, but Edwards would not pay it
•The jury found for the plaintiff, and the defendant carried the case by certiorari to the Superior Court.
After argument, the Court below dismissed the certiorari-, and Edwards filed his bill of exceptions, alleging that the Court erred,
1st. In ruling that the said Henry M. Cherry was a competent witness; and
2d. In ruling that the evidence in the case was sufficient to authorize a judgment in the Justice’s Court for the amount sued for.
Spenser, for plaintiff in error.
Hanseix, contra.
By the Court.
Lumpkin, J.
delivering the opinion.
Two questions are made in this case. 1st. Was Henry Cherry a competent witness? 2d.“Was the evidence sufficient to justify the verdict,
[1.] We concur with the Court below that ’Cherry was a competent witness. A judgment in this case would be no bar in a subsequent suit, at the instance of McKinnon against Cherry.
In the case of Nesbit vs. Lawson, 1 Kelly, 275, relied on to exclude Cherry, the point was different. Lawson sued Nesbit, as his attorney, for having collected money on a promissory note. Grimes, the debtor, was introduced to prove that he had paid the money to Nesbit. If a judgment had been fixed on Nesbit, by the testimony of Grimes, the right of action against Grimes would have been lost, whether the *340money was collected or not. For the record would show, (and the plaintiff would be bound by it,) that the plaintifPs attorney had already collected the money of the debtor. The interest of Grimes, therefore, was direct and immediate. Nat so here; for as we have already said, a judgment against Edwards would not relieve Cherry, unless the money was collected. And even it would not necessarily discharge Cherry from a liability to refund to Edwards. Both of them might be liable to McKinnon, as in the case of principal and agent, where the agency is not disclosed.
[2.]
Taking the testimony of Cherry as competent, ought there to have been a recovery against Edwards ? Through kindness to Cherry, for no other motive can be inferred from the transaction, Edwards agrees to purchase for Cherry are engine to start a mill; and to allow Cherry to reimburse him when he is able to do so, after first deducting the expenses of keeping up the establishment, and supporting his family. This is no partnership, as has been suggested by the distinguished counsel in behalf of the defendant in error.
The engine is bought by Mr. Edwards and shipped to .Newport The agent of Mr. Edwards at Newport refuses •to deliver it to Cherry but upon the order of Edwards. This is obtained by Mr. Cherry, and the engine is delivered to McKinnon, a wagoner, and the plaintiffin the action below, who agrees with Cherry to haul it to Thomasville for fifty dollars. The mill, from some cause or other not distinctly .disclosed in the proof, failing to realize the expectation of the .parties, is re-sold, by the consent it would seem of Cherry, by .Edwards to Moore. And McKinnon, between whom and Edwards there was no contract, express or implied, seeks to hold Edwards liable for the hauling, and so the jury find.
We do not see upon what principle this verdict can be 'sustained. Edwards never employed McKinnon to do this :job. He was under no obligation, legal or moral, to have •the engine, transported from Newport to Thomasville. Cher•ry was not his agent for this purpose, so far as the testimo*341my shows. The work was undertaken and performed upon the sole employment of Cherry. Our conclusion, therefore, is that the finding in the Justice’s Court was not only contrary to the proof, but without any evidence to support it And consequently, that instead of dismissing the certiorari, it should have been sustained, and a re-hearing awarded on that ground.
Judgment reversed.