142 Va. 500 | Va. | 1925
delivered the opinion of the court.
This was an action by Burton’s executor against H. W. Manson and the administrator of May Burton Manson, his wife. The plaintiffs sought recovery on a bond for $607.00 made by H. W. Manson and May Burton Manson payable to W. J. Burton, on demand, and on an open account for $75.00.
May Burton Manson was the daughter of W. J. Burton, the plaintiff’s testator, and the defense relied on was that Burton had lived with the Mansons from 1906 to June 1, 1915, and that the bond and account sued on had been paid by board and lodging furnished by the Mansons during that time, and that Burton had declared that the debt had been so paid.
Three witnesses for the defendant testified that from sometime in 1906 to 1915 W. J. Burton made his home with the Mansons, in Petersburg, and that Burton and Manson were on the best of terms. They also testified that Burton was a very careful and particular man in his business affairs and close in his busines's dealings with others, but they had no knowledge of any arrangement between them as to how Burton was to pay his board except that one of them states that sometime during the period above mentioned and prior to June, 1915, Burton stated to him that he was hot paying cash board to the Mansons. The same witness also states that Burton was a very close man, but honest and fair
There was exhibited with the testimony of H. W. Manson the bond above mentioned for $1,083.00, with endorsements of the credits thereon, and statements of' the balance, due, including other notes, which showed that the Mansons were indebted to him in the sum of $664.03 as of August 12, 1912. If interest be calculated on this sum at six per cent until June 1, 1913, it would amount to $697.23. There is the following endorsement on the bond for $1,083.00:
“June 7, 1913.
“Credit board amt. to this date and renewed for balance.
“W. J. B.”
“June 7 credit for six months board at $15.00 per*506 month, $90.00.” Subtract this $90.00 irom the $697.23 would leave $607.23 as of June 7, 1913. The bond sued •on is dated June 7, 1913, and is for $607.00.
Manson also stated in his testimony that the account sued on, as well as the bond, was included when Burton said that the debt of Manson was paid and that they •owed him nothing. Although he says that this took place prior to June 1, 1915, we find the account sued on has this entry:
“January 25, 1919. Credit by check for $50.00.”
So that although he regarded the account as paid on June 1, 1915, we find him making a payment thereon as late as January 25, 1919, for $50.00.
If Burton had made no payments whatever after •June 7, 1913, and had remained with the Mansons during all that time, his board and room rent at $20.00.a month would have amounted to $680.00, but the cheeks above referred to for board amounted to $202.00, so that at the most the credit that Manson could claim •on the bond and account was $478.00, and, of course, with interest to be calculated from appropriate dates.
If we look to the endorsements on the bond for $1,083.00, and the statement which accompanied the bond when it was surrendered and the new bond taken, we find that from February 1, 1906, to August 1, 1912, there is credited to the Mansons room rent and board lor only twenty-five months, although he had been living with them six years and six months. It is manifest, therefore, from this statement that his board during these six years and six months was not paid altogether by credits on the $1,083.00 bond.
The statements of the other three witnesses corroborate Manson as to the fact that W. J. Burton made his home with the Mansons for the greater part of the time between the spring of 1906 and June 1, 1915; that they
The main question at issue between the plaintiff and the defendants was whether or not the bond and account sued on had been paid, and on this question the burden of proof was upon the defendants.
• The chief witness for the defense was H. W. Manson, one of the defendants, and under the terms of section 6209 of the Code it was necessary that Ms testimony should be corroborated before any judgment could be rendered in his favor. The case, therefore, involves the proper interpretation of section 6209 of the Code, which is copied in the margin.
In the instant case, the witness sought to be corroborated comes fully within the designation of the statute, as an adverse and interested party. He is a party to the action, his interest is adverse, and he is seeking a judgment in his favor based on his own testimony. He cannot obtain such judgment “founded on his uncorroborated testimony.” His testimony must be corroborated. But to what extent must he be corroborated? The facts and circumstances attending one case are so entirely different from those of another, that-it would be unwise to attempt a general answer that would be of universal application. We can only safely deal with each case as it arises.
In Gildersleeve v. Atkinson, 6 N. M. 250, 27 Pac. 477, it was said: “Corroborative evidence is such evidence as tends in some degree, of its own strength and independently, to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegation or issue, if unsupported, would be fatal to the ■ease; and such corroborating evidence must, of itself, without the aid of any other evidence, exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue which it supports, and such evidence will not be material unless the evidence sought to be corroborated itself supports the allegation or the point in issue.”
See also National Rubber Co. v. Oleson, 20 N. M. 624, 151 Pac. 694; and Re Cordoner’s Estate, 27 N. M. 105, 196 Pac. 327, and cases cited.
The eases cited correctly state the quality of the evidence to be received. It must be corroborative in the sense indicated, in order to be admissible, but there must also be sufficient of this evidence to corroborate. There must be quantity as well as quality. The difficult question to answer is, when is there sufficient evidence of the right quality bo amount to corroboration? Clearly, it is not necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the testimony sought to be corroborated.
Nothing that was said in Merchants’ Supply Co. v. Hughes, 139 Va. 212, 123 S. E. 355, was intended to decide that the witness to be corroborated must be corroborated on all material points. The case was
As to the degree of corroboration required, the learned judge of the trial court in an oral statement to the jury, which has been properly treated as an instruction, said:
“The law does not require the testimony of such an adverse witness to be corroborated in every particular, but that what the law requires is that there should be such corroboration as would confirm and strengthen the belief of the jury in the testimony of the witness.”
Probably this would have been a sufficiently accurate statement of the law if the testimony of the witness to be corroborated had been consistent and harmonious throughout. But it was far from it. He claimed that the account sued on was paid in full before June 1, 1915, and yet made a payment of $50.00 on it in 1919. He claimed that no cash had been paid for board and room rent, and yet admitted cash payments amounting to $202.00 which should be deducted from his claim for board. According to his own admissions he was not entitled to the verdict rendered in his favor.
Mrs. Manson and Mrs. Polkes were daughters of
On the record before us, we are not satisfied that there should not be some credits for board between June 7, 1913, and June 1, 1915, nor, if so, what those credits should be, and hence no final judgment can be-
Reversed and remanded.
“Section 6809. If one party incapable of testifying, testimony of other party to be corroborated; when memoranda, etc., of an incapable party to be received in evidence.—In an action or suit by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony; and in any such action or suit, if such adverse party testifies, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence.”