100 Mass. 153 | Mass. | 1868
By the St. of 1865, c. 207, § 2, whenever the contract or cause of action in issue and on trial was made or transacted with the wife of any one of the parties in the absence of her husband, she may be a witness for either party although not joined in the suit. In this case, the cause of action in issue and on trial consisted of three separate items, set forth in a bill of particulars annexed to a count on an account annexed. There are three separate contracts, each item containing one; and though the cause of action is one in the declaration, yet on the trial there were three distinct causes of action to be heard, each of which was in issue. The first item was for the board of the defendant and his wife. It was contended by the plaintiff that the contract for the board was made by the defendant with the plaintiff’s wife in his absence; and the finding of the auditor is placed explicitly on that ground. As to such a matter, the statute makes her a witness. But it does not make her a witness as to the other causes of action set forth in the other items. The court properly admitted her to testify as to that contract and cause of action. If her husband knew that the board was furnished in such a manner as to imply a contract to pay in case there had been no express contract, he was also a competent witness to testify what he knew; and the judge properly declined to order him to elect beforehand •whether he would rely upon an express or an implied contract, lie had a right to put in all the competent evidence he had, and avail himself of it in any legal way. It appears by the auditor’s report that he also admitted the wife to testify as to that matter only.
The motion to recommit the report was addressed to the discretion of the judge, and his decision is not subject to exception. The report having been read in evidence, the defendant had no right to call the auditor to contradict it. Monk v. Beal, 2 Allen, 585. Exceptions overruled.
