Goldman v. Sotelo

60 P. 696 | Ariz. | 1900

DAVIS, J.

The plaintiff, Pedro Sotelo, brought suit in the court below against Charles Goldman, as administrator of the estate of M. "Wormser, deceased, to recover for labor and services, under the terms of an express contract alleged to have been made by him with the said Wormser in his lifetime. The cause was tried before a jury, and a verdict rendered in the plaintiff’s favor for the sum of $973, upon which the court entered judgment. The administrator appeals from the judgment and from the order overruling his motion for a new trial.

It is first complained of, as error, that the trial court permitted the plaintiff, over the objections of the defendant, to testify to transactions had with the decedent, Wormser. Upon this point the record clearly shows that the plaintiff was permitted to testify to the nature, terms, and performance of the verbal contract of employment claimed to have been entered into by him with the said decedent, and which was the basis of this action. Under the general rule which finds expression in the maxim that “The mouth of one party being closed by death, the mouth of the other is closed by the law,” much of this testimony would have been inadmissible. The question here, however, must be considered in the light of our statutory provision on the subject, which is as follows: “In an action by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party or required to testify thereto by the court.” Rev. Stats., par. 1865. An evident purpose of this statute was to .leave the competency of either party’s testimony regarding such “transaction” or “statement” to the sound discretion of the court. In the case before us the court exercised that discretion by overruling the objections of counsel, and thereby “requiring” the plaintiff to testify. The same facts were, however, testified to by two other witnesses; and, there having been no apparent abuse of discretion, there was no error in the court’s ruling admitting the testimony complained of.

It is contended by the appellant that there is a material variance between the complaint and the evidence in this case, and the point is sought to be made that, while the plaintiff’s pleading declared upon an express contract, the tendency of his proofs was to support an implied contract. The appellant’s contention in this regard is not,, however, sustained by the record. While at the beginning of the trial the plaintiff asked and obtained leave to amend his complaint so as to permit of a recovery upon a quantum meruit, such amendment was never in fact made, and the evidence throughout shows that the case was tried and submitted upon the theory of an express contract. Besides the plaintiff’s own statement in relation to the matter, there was the testimony of two other witnesses tending directly to establish such a. contract.

Upon the final proposition, that the verdict is contrary to the evidence, we need only say that there was some evidence presented to the jury in support of every allegation of the complaint essential to this recovery, except those allegations which were expressly admitted by the answer. The weight of the evidence and the credibility of the witnesses were matters peculiarly for the consideration of the jury, and of the lower court upon the motion for a new trial. The appellate court will not grant a new trial on the ground that the verdict is contrary to the evidence, when the testimony is conflicting, and there is any evidence to support the verdict. The judgment of the district court is affirmed.

Sloan, J., and Doan, J., concur.