34 Wis. 117 | Wis. | 1874
We are unable to see any’substantial objections to allowing the plaintiff, as administrator of the estate of William Poster, to show in this action at law on the note, that said Poster, when he made the settlement of March 3,1858, was insane, and was therefore incompetent to transact business or
It is further claimed and insisted that the court erred in not granting the nonsuit, for the reason that the plaintiff failed to produce the note as a part of his case, or to account for its non-production,' and consequently did not show a subsisting liability against the defendant. The indebtedness of the defendant might be shown by any competent evidence, and it was not essential to prove.it by the note itself. But doubtless the note should be produced on the trial, or its nonproduction be accounted for. In this case the answer itself did account for the note, and did show who had possession of it. In view of these
A number of objections are taken to the ruling of the court on the admission or exclusion of evidence. It is said the court erred in excluding the testimony of the defendant in respect to the conversations had between him and Mr. and Mrs. Foster, preliminary to and at the time of the settlement.' Mrs. Foster had testified quite fully in regard to these conversations, and as to declarations and statements made by the defendant to her and Foster to induce them to accede to the arrangement proposed by him. And it is claimed that the defendant should have been allowed to give his version of the transactions and conversations about which she was called upon to testify, and that the case falls within the proviso of sec. 74, ch. 137, R. S. That proviso in effect declares, that whenever, in any action brought by or against any executor or administrator of a deceased person, a witness shall be called to establish any declaration, conversation, admission or transaction between such witness and the party prosecuting or defending in his own right, then and in all such cases such party so sought to be charged may be examined in his own behalf touching such declaration,
In this case, as we understand the bill of exceptions, the defendant was permitted to testify in regard to all conversations and declarations had with and made to Mrs. Foster not in the presence of her husband. The court confined the testimony to such conversations, and would not permit the defendant to give evidence of communications and transactions which took place between him and Mr. and Mrs. Foster. It appears to us that the court gave the statute its proper construction. The defendant was incompetent to testify except touching the conversations, admissions or transactions which occurred between him and Mrs. Foster, and about which she had been examined. Further than this the proviso does not allow him to be examined in his own behalf. Of course Mrs. Foster was a competent witness in the case, under the provisions of this chapter; and the fact that she had been examined in respect to conversations and transactions which took place between her husband and the defendant in her presence, does not give the defendant the right to testify touching the same things. He is legally incapacitated from giving testimony in the action, except so far as he is made competent by the statute. Wright v. Hardy, 22 Wis., 334, and Daniels v. Foster, 26 id., 686. Nor can we see' that it does or should make any difference that Mr. Foster was unable to talk or make himself understood, and that Mrs. Foster was to a certain extent an interpreter, and served as a medium of communication between the parties. Whatever conversations were held under the circumstances were really between the deceased and the defendant; and so far as those matters are concerned, the disqualification is not removed. If there is any hardship in the operation of the statute when thus restricted, the legislature can change it. As it now stands, we are unable
Another error relied on is the ruling of the court in sustaining the objection taken to the question put to the witness San-born, wherein he was asked what payments, if any, were made by him in May, 1865, before he received the conveyance from Foster and wife. We are really unable to see any pertinency in the question asked and excluded. It is true, this witness had testified to a business transaction with Foster, and a purchase of land May 27th, 1865, from Foster and wife. But when and how this land was paid for seems to be an immaterial matter, so far as this controversy is concerned. Whether the witness made payments before he received the deed or not, tends in no way to show the state and condition of Foster’s mind, even when this transaction occurred. There was therefore no error in excluding the question asked.
Again, it is said the court erred in sustaining plaintiff’s objection to the question put to the witness Alonzo Burgess. This witness testified to having certain business transactions with Foster, and to being present, in the winter of 1859, when Foster purchased a horse of Benjamin Burgess.' And the witness was asked as to what degree of sagacity Foster manifested in these trades, and what degree of judgment he seemed to exercise in making them. The question was objected to, and excluded. But it appears, that the witness went on and answered the question by saying: “ I think in the transaction of the business on these two occasions, Mr. Foster understood what be was doing.” This removes the objection, even if the original ruling was erroneous.
Still further, it is said the court improperly allowed Mrs. Foster to answer the question whether her husband ever comprehended the facts concerning the settlement made with the defendant March 3d, 1858, when she answered: “I am satisfied in my own mind that he never comprehended it.” Now it is
A further objection is, that the court improperly admitted in evidence the application for the appointment of a guardian of Foster in November, 1870. This testimony, it is said, was immaterial, and was also objectionable because the guardianship proceedings, and the order, purported to be an adjudication of the mental incapacity of Foster reaching back many years before the application was made. This is very true, but the court expressly told the jury that this adjudication was no evidence of the insanity of Foster prior to the date it was made, but was evidence of that fact when this adjudication was made. With this qualification, and for the purpose of showing that Foster was insane on the 1st of November, 1870, and that his sickness had so affected him as to render him wholly and entirely incompetent as to his mental faculties to have the charge and management of his property at that time, this order was admissible in evidence. See Van Deusen v. Sweet, supra.
And this brings us to a consideration of the questions arising upon the statute of limitations, which has been set up in the answer as a bar to this action. Our statute provides that if a person entitled to bring an action —with certain exceptions not affecting this case — be insane at the time the cause of action accrues, the time of such disability shall not be deemed a part of the time limited for the commencement of the action ; but that the period within which the action must be brought cannot be extended more than five years by such disability; nor can it be so extended in any case longer than one year after the disability ceases. Sec. 29, ch. 138, R. S. Now one important question upon this branch of the case is, what constitutes insanity within the spirit and meaning of this provision.
But it is said, the settlement should not be avoided unless the parties can be placed in statu quo, or in the same position they stood before it was made. This is, in substance, saying that the settlement, though made by an insane man — one whom the law holds incapable of making a contract,— shall stand. Eor the horses, wagons and harness which were turned out on that settlement — saying nothing about the money paid — have doubtless died or been worn out, and cannot be restored. But we do not think there is any inflexible rule of law which requires, in a case like the present, that restitution should be made of everything paid and delivered by the defendant in pursuance of the settlement, as a condition to avoiding it, and of a recovery of the amount due upon the note. See Gibson v. Soper, 6 Gray, 279, and Hovey v. Hobson, 53 Me., 451. It is sufficient to say that no injustice was done by the application made, since that payment cancelled the amount due on the note March 3, 1858, which considerably exceeded such payment.
On the whole record, we think the judgment was right, and should be affirmed.
By ike Court. — It is so ordered.