64 Vt. 219 | Vt. | 1891
The opinion of the court was delivered by
The principal contention between the parties was whether the defendant had paid the plaintiff $25, to
The defendant then called his wife as a witness and offered to prove by her that she took the $25, which he had given her, and as she was setting the breakfast table put the money on the plaintiff’s plate, and that when he afterwards came in, he took the money from the plate and said “ all right.” To this testimony the plaintiff objected and his objection was sustained by the referee and the evidence excluded. As we construe the report, the referee excluded the testimony of the wife on the ground that the testimony of the husband, if true, did not tend to show such a state of facts as would constitute her his agent and thus make her testimony admissible under R. L. s. 1005 and St. 1886, No. 45 s. 2. The exclusion of the testimony offered was error. The payment of the $25, if made by the wife as' the evidence tended to show, was clearly a business transaction conducted by her as the agent of her husband, which would make her a competent witness in his behalf under the statutes cited and the decisions of this Court. Orcutt v. Cook, 37 Vt. 517; Lunay v. Vantyne, 40 Vt. 501; Martin v. Hurlburt, 60 Vt. 364.
Judgment reversed and cause remanded for a new trial.