Tomlinson v. Spencer

Citations

• 5 Cal. 291
• 1855 Cal. LEXIS 114

Syllabus

<p>Under our statute, no person can be excluded as a witness on account of interest in the event of the action, unless he may be a party, or one for whose immediate benefit the action is prosecuted or defended.</p> <p>In a suit, therefore, by an endorsee against the maker of a note, the endorser not being a party, is a competent witness for the plaintiff, where it does not appear that the suit is prosecuted for his immediate benefit.</p> <p>An agent is a competent witness to testify as to his authority in the performance of acts for his reputed principal.</p> <p>And the fact that such agent appears by his own testimony to be a secret partner with the principal, will make no difference.</p> <p>A release of the endorser of a note by the endorsee, such endorsee being a secret partner of the maker, will not release the maker.</p> <p>Where the plaintiff had no knowledge until the trial, that a third party was a secret partner of the defendant, the non-joinder of such third party cannot be objected to by the defendant.</p>