| Mich. | May 18, 1900
Joseph B. Moore, in the capacity of administrator of his father, J. Wilkie Moore, of Detroit, replevied from the defendants, who are husband and wife, some articles of household furniture, which at the time of the replevin were in the residence which had been occupied by J. Wilkie Moore until about two weeks before his death. Elizabeth Mackenzie became the housekeeper of J. Wilkie Moore on April 25, 1885, and she married John J. Machen at Mr. Moore’s house on December 24, 1890, and they remained at the house of Mr. Moore until his death. About two weeks before J. Wilkie Moore died, he was taken to the house of his son, the plaintiff, where he subsequently died. Upon the trial the defendants claimed that some of the articles replevied had been purchased by Mr. and Mrs. Machen of Mr. Moore, and others had been given to her by other persons.
Counsel were not permitted to show by the plaintiff that, by direction and authority of his father, he demanded the delivery of the property during the latter’s lifetime. This appears to have been excluded upon the ground that the plaintiff was the son and heir of J. Wilkie Moore, and that his testimony was inadmissible under the statute excluding testimony of facts equally within the knowledge of the deceased. We think this a misapplication of the statute. He did not stand in an antagonistic relation to the estate, but his testimony was offered in its behalf, and was, therefore, admissible. The court instructed the jury that:
“In order to maintain this action, it is essential that the plaintiff should prove either that there was a wrongful conversion of the property upon the part of the defendants, or that he had demanded of the defendants possession of the property, and it had been refused. In either of these cases the plaintiff would be entitled to maintain the action, providing the plaintiff establishes, by evidence satisfactory to you, that, at the time the writ was issued, he was entitled to the possession of the property.”
The exclusion of this testimony was, therefore, injurious, as it tended to prove a demand. There was testimony of another demand, made after the intestate died, but both alleged demands were disputed. We are of the opinion that a demand made by J. Wilkie Moore, or his authorized agent, before his death, would be all the demand required to support this action. Proof of the agent’s authority would be necessary, however, before the demand would avail. If J. Wilkie Moore directed his son to make the demand, it was all that was necessary; and, as it might be proven by the testimony of any one who heard the direction given, so, too, it might be proven by that of
Mrs. Machen was allowed to testify that she purchased some of the articles with money furnished by her husband, and that J. Wilkie Moore was not present at the time. The plaintiff claims that this was not admissible under the statute that prohibits an adverse party from testifying to matters equally within the knowledge of a deceased person in an action brought or defended by his representative. He says that the question was the ownership, and that the deceased must have known whether he owned such property, and that this testimony was an indirect way of proving that he did not own it. Counsel cite some cases in point from other States, but our statute has not received so liberal a construction. Counsel cite several cases which sustain the ruling. Wheeler v. Arnold, 30 Mich. 304" court="Mich." date_filed="1874-10-13" href="https://app.midpage.ai/document/wheeler-v-arnold-7927851?utm_source=webapp" opinion_id="7927851">30 Mich. 304; Webster v. Sibley, 72 Mich. 636 (40 N.W. 772" court="Mich." date_filed="1888-11-28" href="https://app.midpage.ai/document/webster-v-sibley-7933831?utm_source=webapp" opinion_id="7933831">40 N. W. 772); Ripley v. Seligman, 88 Mich. 177" court="Mich." date_filed="1891-10-30" href="https://app.midpage.ai/document/ripley-v-seligman-7935482?utm_source=webapp" opinion_id="7935482">88 Mich. 177 (50 N. W. 143); Pillard v. Dunn, 108 Mich. 301" court="Mich." date_filed="1896-02-07" href="https://app.midpage.ai/document/pillard-v-dunn-7938149?utm_source=webapp" opinion_id="7938149">108 Mich. 301 (66 N. W. 45); Schmitz v. Beals, 115 Mich. 112 (73 N. W. 109).
Many questions are raised over the introduction of evidence. Counsel for the defendants sought to justify some of this testimony upon the ground that it tended to show friendship on the part of J. Wilkie Moore for Mrs. Machen, and tended to render it probable that some of these articles were given to her by him. If there was any testimony directly tending to prove that he gave any of the articles to her, proof of friendly relations might be admissible, otherwise not. There was some testimony admitted, however, that was immaterial, and the learned circuit judge recognized this, but admitted it as cross-examination upon subjects opened by plaintiff’s counsel. As the cause must be reversed for the reason already stated, it is unnecessary to discuss this testimony.
The judgment is reversed, and a new trial ordered.