15 N.M. 450 | N.M. | 1910
The facts are stated in the opinion.
The appellant as executrix of the last will of William B. Childers ' brought suit against Hubbell, for $6,000 for professional services alleged to have been rendered by Childers to Hubbell. The latter filed a counter claim praying judgment for $710. On the trial appellant entered a dismissal and the cause proceeded upon the counter claim with the result that the court instructed the jury to find for defendant in the full amount sued for. The correctness of this ruling is the question controlling this appeal.
The remaining assignment is a more serious one. Our statute on the subject (C. L. Sec. 3021) proceeds: “In a suit by or against the heirs, executors, administrators, or assigns of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by somé other material evidence.”
The corroboration thus required has been defined by this court as follows: “Corroborating 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 case; 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 point in issue.” Gildersleeve v. Atkinson, 6 N. M. 250, 260.
This statute has been further considered and construed in Radcliffe v. Chaves, decided at the present term. Bearing in mind that this is a suit not upon the checks mentioned above, but upon the contract to repay implied from the payment of money for Childers at his request, is there any evidence aside from Hubbell’s tending to support “some essential allegation” raised by the pleadings? These latter essentials are that Hubbell (a) at the request and by the direction of Childers (b) paid on the latter’s behalf to the Bank of Commerce (c) the sum of five hundred dollars.
The testixnony of Hubbell so far as corroborated shows that Childers gave Hubbell two checks of $250 each. These were left by Hubbell in the Bank of Commerce for collection, but were never carried into Hubbell’s account and later on were returned unpaid to Hubbell in whose possession they have remained. Beyond this the uncorroborated testimony of Hubbell is that the checks were contribxxtions to the then current political campaign; that at the end of the campaign there was an overdraft of some $5,000 at said bank on his account as chairman of the campaign committee;1 that he asked Childers to pay the checks, presumably in order that by application of the proceeds to the overdraft it might be decreased; that Childers reqxxested hixn to pay the overdraft and take up the checks, holding the checks until he (Childers) could pay them off. Hubbell. paid the overdrafts, still leaving the checks for collection. Some time later they were returned to him by the bank.
Counsel for appellee having upon the argument asked that in the event of an adverse ruling upon either of these items he be given the privilege of a remittitur, it is the decision of the court that if the appellee shall within twenty days from this date file a remittitur of $500 on the judgment awarded, then the latter shall stand modified so as to run for $210 and as so modified shall stand affirmed with costs; otherwise the cause to stand reversed and remanded with direction for a new trial.
(The above judgment as to costs is modified by the opinion in case No. 1263, King v. Tabor.)