65 Wis. 425 | Wis. | 1886
This was a contested account or claim of the appellant for work and labor in keeping the books of the deceased from Julyl, 1879, to October 1,1881, and in going over and correcting his books for about ten years. An appeal was taken from its disallowance by the county court
There can be no question of the competency of this evidence. It was entirely independent and exclusive of any transaction or communication between the deceased and the witness as a party. It is no proper objection to this testimony that the law might raise from it the implication of a promise by the deceased in his life-time to pay what such
It would seem that this distinction was made as clear as language could make it, and concerning evidence much nearer a personal transaction with the deceased than this pretended work upon the books of the deceased out of his presence, in Daniels v. Foster, 26 Wis. 686. In that case, for the foreclosure of a mortgage, the defendant sought to prove payment and a counterclaim for services, money advanced, etc., to the deceased, and introduced letters of the deceased, and testified to their genuineness, and that he received them by mail; and from that evidence the court found the mortgage satisfied. The letters acknowledged such payment. The evidence was held proper, and Chief Justice Dixon made this clear exposition of the statute: “ The statute forbids the examination of a party in his own behalf in respect to any transaction or communication had 'personally by such party with a deceased person,” etc. The word personally is, made emphatic in the opinion. And again: “ But the personal transaction or communication of the statute no doubt means a transaction or communication faoe to face, or by the parties in the actual presence cmd hearing vf each other P It was under this construction that the letters of the deceased to the living party witness, most nearly “ transactions and communications between them,” were admitted in evidence, and-the testimony of the party
By the Court.— The judgment of the circuit court is re-1 versed, and the cause remanded for a new trial.