Baird v. Fletcher

50 Vt. 603 | Vt. | 1878

The opinion of the court was delivered by

Royce, J.

This is an action of general assumpsit, in which the plaintiffs sued as husband and wife. Plea, general issue, and notice of payment. The first question made by the defendant is upon the sufficiency of the declaration. It is claimed that it is defective in not distinctly describing the wife’s interest, and in what respect she is the meritorious cause of action. It is an elementary rule of pleading, that where the wife is joined with the husband in the action, and she is considered as the meritorious cause of action, that the declaration must distinctly disclose her interest, and show in what respect she is the meritorious cause of action. 1 Chit. PI. 30. But the neglect to make such allegations cannot be taken advantage of under the general issue. The defendant should have demurred to the declaration, and in that manner raised the question of its legal sufficiency ; but by going to trial under the general issue, he has waived the right to insist upon the insufficiency of the declaration.

The next question made was as to the joinder of the wife as a co-plaintiff.. We understand the rule to be, that when the wife can be considered as the meritorious cause of action, she may join with her husband in a suit based upon such cause of action. It appears in this case that the promise which is sought to be enforced by this action, was made to the wife, and that it was made in consideration of the care which she was to bestow in taking care of her father during his life, so that we have no hesitation in holding that she was the meritorious cause of action.

The remaining question is upon the admissibility of evidence offered by the defendant and rejected by the court. The fact about which the parties were at issue was, whether the defendant made the promise to pay Mrs. Baird the sum of money which the evidence of the plaintiffs tended to show he did make. The defendant wholly denied making any such promise, and by this we understand that he made such denial as a witness. He then offered to prove by his evidence and his books of account, that he had given his father credit for what money he received for the insurance on his father’s property, and had settled with and paid him for the same. The books of account then were offered for the purpose of corroborating the defendant’s testimony, and we think they were not admissible for that purpose. It was a matter of indifference to the plaintiffs whether the defendant had paid the money to their father or not; and to admit books of account which the defendant had kept with another party, as evidence tending to show that he did not make the promise upon which this action is predicated, would be contrary to the well-established rule of evidence which precludes a party from making evidence for himself in that way.

Judgment affirmed.