Stallings's Administrator v. Hinson

49 Ala. 92 | Ala. | 1873

B. F. SAFFOLD, J.

— The appellant, as administratrix of her husband, sued the appellees, Hinson and Lewis Bear, on a promissory note made by them payable to her intestate. The complaint also contained a count on an account stated. The defendants by sworn plea denied that the note was the property of the plaintiff, and asserted that it belonged to L. Bear & Co. They also pleaded payment, and the general issue. The merit of the defence was, that Hinson, the principal debtor, paid the amount of the note to L. Bear & Co., at the request and on the authority of the intestate. The larger portion was claimed to have been paid before his death, and the balance afterwards. The conversation between the plaintiff and Hinson, which was detailed, was inadmissible against the objection of the opposite party, so far as it embraced what the decedent had said relative to whom the money was to be paid, or by whom it might be collected. The incompetency includes, also, the statement of his presence when the first payment was made to Bear & Co. ; because the purpose of stating it was to give emphasis to the payment, as made under his authority. He would be precluded from setting up a right to recover money which, in his presence, and of course with his concurrence, was paid to another party for his use.

2. Leo Frank was a member of the firm of Bear & Co., as was Lewis Bear, one of the defendants. This firm had indemnified Hinson on account of his payment of the money to them. Frank, as a witness, was within the prohibition of the-examination of a party, “ as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party.” R. C. § 2704. For, though he was not a party to the record, he was directly interested in the judgment to be rendered, by reason of the indemnity given to Hinson by the firm of which he was a member. The basis of the incompetency of a party is his interest. The proper construction of section 2704 of the Revised Code is, that it does not change the former rule of evidence so far as any transactions with or statement by the decedent is concerned, in respect to the incompetency of witnesses on account of being a party or interested in the issue tried, in suits or proceedings by or against executors or administrators, unless the witness is called to testify thereto by the opposite party. As Frank would not have been a competent witness on these points by the previous law, he is not so under section 2704.

3. The conversation between Frank and Gandy about the portfolio, when the plaintiff called for it, not having been in her presence, is no part of the res gestee. The portfolio at that time was only temporarily in their possession, and so secured that they could not get access to its contents. The conversation was not explanatory of their possession.

The charges given and refused are so dependent upon the evidence improperly admitted, that it is not necessary to consider them.

The judgment is reversed, and the cause remanded.