Sublett v. Hodges

88 Ala. 491 | Ala. | 1889

SOMERVILLE, J.

1. It is settled by our decisions, that the transferror of a chose in action is not a competent witness for his transferree under the statute, in a suit by the latter against the persona] representative of a decedent, as to any statement or transaction occurring between himself, or between other persons, and such decedent.—Drew v. Simmons, 58 Ala. 463; Lewis v. Easton, 50 Ala. 470; Goodlett v. Kelly, 74 Ala. 213; Code, 1886, § 2765.

Under this principle, the Circuit Court properly excluded so much of the testimony of the witness W. M. Coleman as related to conversations and transactions with the decedent Bain, touching the claim in suit. The witness is shown to have had a half-interest in this demand, which he held for a time, and then transferred to the plaintiff, Sublett. He was, therefore, a transferror within the meaning of the rule.

2. The court erred, however, in allowing the defendant Hodges to testify, against the plaintiff’s objection, as to conversations or transactions occurring between the witness, the decedent Bain, and Coleman, who was transferror of the plaintiff. The case must be treated as if the transaction testified to had been one between the witness, the decedent, and the plaintiff himself, inasmuch as the latter claims as Coleman’s transferree. We have the case, then, of a suit by the plaintiff against Hodges and Bain’s personal representative, on a joint and several demand. Can the personal representative introduce his co-defendant, Hodges, to testify against the plaintiff, the latter objecting to the testimony, on the ground that it related to a transaction with the deceased, whose estate was interested in the result of the suit?

At common law, the rule was, that a person named on the record as a party, was incompetent to testify without the consent of all other parties to the record. The right of objecting was a mutual and several privilege, and not merely a joint one. — 1 Greenl. Ev. § 354. The statute now renders parties competent, with two exceptions, one of which is, that neither party is to testify against the other, as to “any transaction with, or statement by any deceased person, whose estate is interested in the result of the suit, unless called to testify thereto by the opposite party.”' — Code, 1886, § 2765. The witness, Hodges, falls clearly within the letter of the prohibitory exception. (1) He is a party to the record. (2) His testimony relates directly to a transaction between himself, the decedent, whose representative is also a party defendant, and the plaintiff’s assignor. (3) His testimony is adverse to the plaintiff.

It is true that the administrator of Bain waives all objection to Hodges, and calls him as a witness. But there is no waiver on the part of the plaintiff, who is also a party, and whose rights may be injuriously affected by the testimony. He is an “opposite party” within the meaning of the statute, and 'his consent was requisite in order to authorize the witness tobe called.—Mob. Sav. Bank v. McDonnell, 87 Ala. 736.

This result comports . also with the equity of the statute, which has in view the idea of preserving perfect equality and justice between the parties litigant, bo far as practicable. If the lips of the plaintiff are sealed by the law, because he is a party, and he is, for this reason, forbidden to testify against either Hodges or Bain’s estate, it would seem to be unjust, that the administrator, within his mere discretion, should be empowered to lei Hodges testify against the plaintiff, and by his ipse dixit, at the same time, prevent the plaintiff from making any counter explanation as against Hodges himself, a living party defendant. It is further manifest, that the plaintiff, by waiving objection, could not have introduced Hodges as a witness against Bain’s estate. No more ought the representative of the estate to be permitted to introduce him against the plaintiff.

3. The court erred in giving the general affirmative charge requested by the defendants, in view of the conflict in the evidence bearing on the main issue of indebtedness vel non to the plaintiff, in reference to which opposite inferences might reasonably have been drawn by the jury.

4. If Hodges and the decedent, Bain, jointly agreed unconditionally to pay for the work of constructing the building, or any part of it, and the work was skillfully executed in proper time, the plaintiff would prima facie be authorized to recover the reasonable value of the work, if there was no price fixed, or the stipulated price, if any was agreed on between the contracting parties. And this would be true, whether the contract was made with the plaintiff alone, or, as averred in the amended complaint, with plaintiff and Coleman jointly, provided the claim was the property of the plaintiff at the time the action was commenced.

5. The amended complaint introduced no new cause of action, so as to be barred by the statute of limitations of three years, which was pleaded. It only corrected a supposed misdescription in the account or demand already in suit. The case of Long v. Patterson, 51 Ala. 414, in principle is conclusive of this point.

For the error of giving the charge, to which exception was taken, the judgment is reversed, and the cause remanded. .