Penn's Administrator v. Watson

| Mo. | Oct 15, 1854

RylaND, Judge,

delivered the opinion of tbe court.

This was an action brought by tbe plaintiff, Worden P. Penn, .as administrator of S. Penn, jr., deceased, against Ringrose

D. Watson, on an account for advertising and for subscription to the Missouri Reporter, extending from January, 1844, up. to July 27th, 1846, for the sum of $>62 41, on which, account are credits for sundries, at different times, during the periods aforesaid, $>21 75 ; products, per orders of W. P. Penn, during August, 1849, $>12 10, making credits amount to $83 85, leaving a balance of $28 56 due the estate.

The defendant relies upon the statute of limitations, and called, by his answer, upon the court to allow him the benefit of that statute, and also his set-off against the account. This set-off consists of two orders from the plaintiff, as administrator of the estate of S. Penn, jr., deceased; one is, “for five dollars’ worth of fruit, vegetables, and other articles, which shall be credited upon your account, due the estate of Shadraeh Penn, Jr., deceased.” This order is dated August 16,1849. The other is dated August 27, 1849, and requests the defendant “ to let the bearer have such articles as he may choose, amounting to five or eight dollars, for which he will receipt, and the amount shall be credited on your account due the estate of Shadraeh Penn, jr., deceased — and an account from March, 1844, up to February 26, 1845, for queensware, &c., amounting to $44 01.

The court refused to declare that the plaintiff’s account was barred by the statute of limitations. The court also refused to permit the books of account of the defendant to be read in evidence as proof of the items in the account of the set-off.

Upon the trial, the plaintiff was introduced as a witness, to prove some of the items in the account against the defendant. He was first sworn on his voir dire, and stated he was a son of the deceased, Shadraeh Penn, jr., and that the estate was solvent. The defendant then objected to him as a witness ; his objection was overruled and exceptions taken. The jury found for plaintiff; a motion was made for a new trial, overruled and exceptions filed. The defendant" brings the case here by writ of error.

1. The court properly refused to declare that the statute of limitations barred tbe plaintiff’s right of action. Here were mutual accounts, some of the items coming down to the period within the limitation. There was a set-off, expressly admitting that the first two items thereof were to be credited on the account of the estate against the defendant; these items bringing down his account within the period of the limitations. The statute, then, was properly declared to haye nothing to do with the case.

2. The court also properly excluded the books of account of the defendant. He had made no case for their admission. The authorities cited by the counsel for the defendant, do not support his view of this matter. The clerks of the defendant were absent in a sister state. No proof was offered by him to show that the items of the account were charged at the time of the sale, or near to the time. See 1 Greenl. Ev. sec. 117, part 2.

3. The only remaining point is the admissibility of the plaintiff as a witness to support his action. On this point, we think the court erred. The 25th article of the code of practice of 1849, sec. 1, declares that “no person offered as a witness, shall be excluded by reason of his interest in the event of the action.” Sec. 2. “ The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action, assigned for the purpose of making him a witness.”

The witness here was the plaintiff, “ a party to the suit.” He was called to prove the amount due to the estate of his deceased father, which was solvent, and, consequently, was called to increase the fund from which he was in law to receive his 'distributive share. He was expressly within the first clause of :the second section above cited ; he was “ party to the action.” He was also within the second clause. The suit was prosecuted for his benefit, as well as for the benefit of others. Under ■this statute, then, he was clearly incompetent.

4. The statute concerning administration, article 2, section 24, p. 76, R. 0. 1845, declares that, “ In all actions prosecuted or defended by or against any executor or administrator, be shall not be disqualified from being a witness, as to facts occurring anterior to Ms qualification, on account of bis being such executor or administrator — that is, the bare official character of administrator or executor shall not disqualify him as a witness to such facts, although he be a party to the suit; but when interest attaches to the administrator or executor, he is not competent to be a witness. His office of executor or administrator does not disqualify him as a witness ; but this office will not qualify him by rendering Mm competent, when he is interested in the suit.

The court, therefore, erred in admitting the plaintiff to testify for himself in this case, on his own motion. The other judges concurring, the judgment below is reversed, and the cause remanded for further proceedings, in accordance with this opinion.