McClelland's v. West's Administrator

70 Pa. 183 | Pa. | 1872

The opinion of the court was delivered, May 13th 1872, by

Agnbw, J.

The objection to the competency of Enos West as a witness cannot be sustained. He was not a party to the record and had no interest in the subject of the controversy, nor was he a party to the contract or account out of which the debt in suit arose, and no assignment from him was necessary to enable the' plaintiffs to maintain their action. Whatever interest he had was a resulting interest in the final settlement of the estate of Jonathan R. West. But as the action was brought, he had no interest in that particular claim, for the action was not brought for the benefit of the estate, but for the use of Jacob D. West, and George L. West, whose interest passed to D. N. Cooper. They were the parties conducting the suit. The release of Enos West was to George L. West, in whom the title of the estate of Jonathan R. West had apparently vested before, either by the act of the decedent or that of his representative. In this state of the record the release was primá. facie a release, and not an assignment. Now, in the bill of exceptions, it does not appear that the right of Jacob D. and George L. West, to bring the suit, was denied or that proof of their title was demanded as preliminary to the objection to the competency of the witness. Since the Act of 1869, enacting that neither interest nor policy of law shall exclude a witness, the ground of Post v. Avery is removed by legislation. Now the policy at the bottom of that case and its sequents is reversed, and prima, facie all witnesses are competent so far as_ interest and policy are in the question. It therefore lay upon the defendant to show a ground of incompetency still remaining to exclude the witness. As the record stood then without objection, there was nothing to show that the estate of Jonathan R. West, or that Enos West had any interest in the controversy before the court. Since the act of 1869, the court, in order to act in good faith toward the legislative branch of the government, must discountenance all objections on the score of interest and policy unless they be made clearly to appear.

The question upon the Statute of Limitations is without difficulty. This was not the case of a party promising to settle an account, or using any such ambiguous terms, and therefore it does not fall within Weaver v. Weaver, 4 P. F. Smith 152: McClelland’s Executor v. West, 9 P. F. Smith 487, and that class of cases. On the contrary, it was the case of an actual settlement of the amount, stating it and striking a balance and a computation of interest by both parties on the balance. There was but one witness and no contradiction of his testimony, and the paper itself on which the settlement was made, balance struck and interest added, was produced and identified. There could not be a plainer admission of a precise debt and certain amount, accompanied as it was also, by an express waiver of the Statute of Limitations before the parties took off the accounts of both sides. Indeed, it is a stronger case than Johns v. Lantz, 13 P. F. Smith 324, and well deserves the remarks made by our Brother Sharswood in that case. The answer of the court to the defendants’ point was therefore not erroneous.

Where an account is settled and a balance struck, the balance clearly bears interest, notwithstanding interest had been added into the account. The balance of the account being stated by themselves, becomes a new principal, and we do not go behind it, to ascertain the items, or their character, which entered into the account.

Judgment affirmed.