Hall v. Hamblett

51 Vt. 589 | Vt. | 1879

The opinion of the court was delivered by

Ross, J.

Both parties claim title to the wagon in controversy from Randall Hall, deceased, the plaintiff, by purchase from Randall Hall in his lifetime, and the defendant, by purchase from the administrator on Randall Hall’s estate. The wagon remained in the possession of Randall Hall during his life, and came into the possession of. the administrator as a part of his estate. If the defendant is liable for the conversion of the wagon by refusing to deliver it on demand to the plaintiff because of his purchase of it from the administrator, the administrator was guilty of a conversion of the wagon as against the plaintiff by the sale of it to the defendant. Having sold it to the defendant as a part of the estate, the administrator, and through him the estate, is bound to defend the title to the wagon in the defendant. Hence the estate, though not a party, is interested in the event of the suit. It is true, in trover the conversion is the gist of the action ; but whether there was a conversion depended upon whether the plaintiff purchased the wagon of Randall Hall in his lifetime. Without establishing such purchase the plaintiff fails to make out a prima fade case. Therefore, such purchase or contract was involved in the issue on trial. The plaintiff could not safely rest his case without introducing proof to establish his purchase of the wagon. The plaintiff offered himself as a witness to establish such purchase. The County Court properly excluded him from testifying. He is within both the letter and spirit of the prohibition of section 24, c. 86, Gen. Sts., disallowing the testimony of “ one of the original parties to the contract or cause of action in issue and on trial” in-his own favor, where the other party is dead. Not only was' the establishment of his purchase of the wagon a necessary part of the plaintiff’s proof to make out a right of recovery in the action, but also its establishment involved- in its consequences the estate of Randall Hall, from the administrator of which the defendant derived his title.

. We think the case is clearly distinguishable from Manufacturers' Bank v. Scofield, 39 Vt. 590; Cole v. Shurtleff, 41 Vt. 311; Morse v. Lowe, 44 Vt. 561; Downs v. Belden, 46 Vt. 674; Taylor v. Finley, 48 Vt. 78, in which it was held that the living party to a contract not directly involved in the issue on trial, but only coming in collaterally as a fact bearing upon the issue on trial, and in the trial of which issue the estate of the deceased party was in no respect interested or involved, was not within the prohibition of the statute. Says Prout, J., in Cole v. Shurtleff, “The design of the statute was to. exclude a party from testifying when the other party to the contract in issue and on trial has died, and when in the action such deceased party is represented by an executor or administrator, and contemplates a suit or proceeding, the determination of which may affect the estate of the deceased party.” Says Peck, J., in Taylor v. Finley, “ Neither the executor nor administrator of the estate of Batchelder, deceased, is a party to the suit; nor does it appear that the estate of Batchelder is to gain or lose by the event of the suit.” Pierpoint, O. J., in Downs v. Belden, the case most relied on by the plaintiff, makes use of this language: “ James Belden’s estate is in no sense a party to this suit, or in any way interested in, or to be affeected by, the result, and for that reason the case docs not come within the spirit of the statute, or the principle recognized in Fitzsimmons v. Southwick and Cheney v. Pierce, 38 Vt. 509, 515, and that class of cases. We think the purchase of the property by the plaintiff, of James Belden, was a matter collateral to the cause of action in issue and on trial. It was material and admissible, as bearing upon the question involved, but did not form the basis of the action or of the defence.” In the case at bar the action, though in name between the plaintiff and defendant, was in fact, and in its consequences, between the plaintiff and Randall Hall’s estate.

Judgment affirmed.