Fulkerson v. Thornton
68 Mo. 468
Mo.
1878
Check Treatment
Sherwood, C. J.

Action for damages for breach of alleged contraсt for building a church; the plaintiff claiming that the defendants had emрloyed him to build the church, and ‍​‌‌​‌‌‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​​​​‌​‌​‌​‌‌​​​‌​‌​​​‌‌​‍after its commencement and partial completion, had prevented him from going on with the wоrk. Answer, a special denial; trial, and verdict for plaintiff".

1. witness: death of one of two adverse parties.

I. Objeсtion was made to plaintiff testifying on the ground that as Wm. T. Thornton, Sr., onе of the alleged contracting parties," was ‍​‌‌​‌‌‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​​​​‌​‌​‌​‌‌​​​‌​‌​​​‌‌​‍dead, plаintiff was . x mn ♦ i • an incompetent witness. Inis objection was, we think, proрerly overruled. Thornton, the deceased, *469was not the solе contracting party; that party was composed of Thоrnton and Hitch, the latter being alive at the time of trial. The legаl party to the contract did not consist of a single individual, but of twо persons — Thornton and Hitch. If the contract had been made with Thornton alone, and he was dead at the time of trial, a widеly different question would be presented. The point is a new one in this State, and, consequently, ‍​‌‌​‌‌‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​​​​‌​‌​‌​‌‌​​​‌​‌​​​‌‌​‍any authorities cited from our own reports, or from those of other States, relative to a сlass of cases where the sole contracting party is dеad, have not the slightest applicability. In Massachusetts, where the statute in regard to witnesses is substantially like our own, the ruling as to the competency of a witness under similar circumstances to those above detailed, has been in accordanсe with the views here enunciated. Goss v. Austin, 11 Allen 525; Hayward v. French, 12 Gray 453. The reason of the statutory prohibition, is the prevention of one person testifying where death has. sealed the lips of his adversary; a reason which cannot possibly apply where there are other persons, still alive, who were co-contractors with the decedent, cognizant ‍​‌‌​‌‌‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​​​​‌​‌​‌​‌‌​​​‌​‌​​​‌‌​‍of all the facts as well as he was, ablе, therefore, to testify in opposition to the testimony of the witness objected to as being incompetent becausе of the death of one of the co-contractors. As the reason for the rule does not exist, no more does the rulе.

2. practice.

II. In reference to the second alleged error, that of admitting in evidence the unsigned memorandum of the the contraсt which Prottsman drew up and which Thornton and ‍​‌‌​‌‌‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​​​​‌​‌​‌​‌‌​​​‌​‌​​​‌‌​‍Hitch were to sign, it suffices tо say that no objection was made to the introduction of that memorandum, and it is too late to object to its introduction now.

3 instructions

III. Relative to the third point of defendants : Their answer merely denied that they made the contract, and contained no аllegation whatever, that they merely contracted as agents of, or as a committee for, the *470Methodist Episcoрal Church South; consequently, any instructions based upon the theory that they were not individually liable, were altogether foreign to the issues raised by the pleadings. Bank v. Murdock, 62 Mo. 70, and cases cited. Besides, the jury were expressly told that they were not to find for plaintiff, unless thеy agreed to be individually responsible; and there was evidenсe tending in that direction.

The ease having been tried in accordance with the views here announced, we affirm the judgment.

Affirmed.