118 Ky. 474 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
On December 10, 1888, S. E. Proctor made a deed to ber brother William Proctor for a tract of land in consideration of $750, for which he executed to her his note, due one day after date. She died in the year 1899, and this suit was filed by her administrator against William Proctor to recover on the note and enforce the lien on the land. He pleaded that in the yeai 1897 his sister made a contract with him whereby it was agreed that he should take care of her as long as she should live, .and as compensation for his services lie was to have all the estate she left; that under this contract she lived with him from that time to her death; and that the note sued on was the only estate she left. In another paragraph he pleaded that his services were of the reasonable value of $100 a year; that he furnished board, lodging, clothing, medical attention, etc.; and that it was understood that she was to pay out of her estate a reasonable compensation for these things, to be offset against the note. The allegations of the answer were controverted by the reply, and on final hearing the court gave judgment against the defendant for the note, and enforced the lien
William Proctor testified for himself that his sister mads the agreement with him as set out in the first paragraph of his answer; but, under section 606 of the Civil Code, he can not testify for himself as to any transaction between him and the decedent. The court therefore properly sustained the plaintiff’s exceptions to so much of his deposition as states what occurred between him and his sister. He introduced Mary Scott, his daughter, who stated that there was a general understanding in the family as to an agreement betweén her father and her hunt that he was to pay her bills, and he was to get her interest in her father’s estate at her death. He also introduced one of his sons, who said that his father had told him that this was thé agreement. But this evidence was irrelevant. He introduced another son, who stated generally that the understanding was that his father was to take care of his aunt as long as she lived, for what she had; but he did not state from whom he got this understanding, or show that he had really any personal knowledge as to what the agreement was. To is the same effect is the testimony of a niece whom he introduced. There' can be no recovery on the alleged contract without proof that it was made, and we think that the circuit court properly held the proof insufficient. The plaintiff proved by a number of witnesses that the deceased did not stay at the defendant’s house all the time, but was at other places one-fourth of the time, or more, each year, and that while at his house she helped cook and do other housework, her labor being of value as much as her board. The proof as to the way the deceaséd labored at the defendant’s house, and the length of time that she was away, tends strongly to show that she was not there as a boarder.
In Brannin v. Foree, 12 B. Mon., 506, which was also a suit on a note, where a book kept by the defendant was relied on to show payments on the note, the common law rule on the subject is thus stated by the court: “To render such entries admissible as evidence, the books must appear to contain a register of the daily business of the party, and
If the competency of the proof in this case be tested by the subject-matter, the entries in the books and the evidence in relation thereto were properly rejected. It was not the sale of the merchandise, or the performance of services, or the use of the property hired and returned, or the payment from time to time of money on deposit, but the payment of an outstanding debt, evidenced by a note in writing, a payment on which should be established, according to the usual' course of dealing, either by a written receipt indorsed upon the note, or taken upon a separate paper. In those states where this character of testimony is deemed
The entries in question were not, therefore, admissible ac common law in cases of this sort; and, as the statute relied on is but declaratory of the common law, it does nor apply to entries which at the common law were inadmissible. Were the rule otherwise, the estates of decedents might suffer unduly in this class of cases, and notes held by deceased persons might be defeated by entries made by the debtors in their private books. The statute was not designed to accomplish this. Its purpose is to allow the debtor himself to testify to the correctness of entries made by him in his books, kept according to the usual course of business, in those cases where the books themselves at common law "were evidence of the facts set out in them. It was not designed to change the rule as to what books were evidence. We are not called on here to define more accurately in what cases entries in books may be admitted, for it is clear that in the case before us the entries were incompetent, as held in the cases cited.
We have carefully gone over the account, and find no substantial error in the allowance of credits by the circuit court.
Judgment affirmed.