28 S.C. 72 | S.C. | 1888
The opinion of the court was delivered by
The defendant, respondent, was sued before a trial justice at Lancaster C. H., as administrator of the estate of one A. J. Kibier, deceased, on an account for services alleged to have been rendered to the said Kibier. A copy of the account was served with the summons, as follows: “1883. A. J. Kibler to J; B. Boyd. May 20th. To one month’s service going to and from plantation during sickness, $35.00.” The plaintiff testified that the account was correct, that the services were rendered and were worth $35.00, or more. This testimony was objected to as obnoxious to section 400 of the Code. Two other witnesses were examined for the plaintiff, who testified that some services were rendered, but they knew nothing positive or definite as to character or amount of said services, or as to any contract between the parties. The defendant offered no witness. The trial justice gave judgment for the plaintiff for the amount of the account. Upon appeal to the Circuit Court, his honor, Judge Wallace, presiding, granted a new trial, holding that the plaintiff’s testimony was incompetent, or at least so much thereof as went to the contract, and that the other evidence, taken as a whole, was too indefinite to support the decree of the trial justice.
We concur with the Circuit Judge. So much of the testimony of the plaintiff as stated that the account was correct, was a statement, in substance and effect, that the services had been rendered upon a contract, or at least upon request or employment, and
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
