26 Iowa 521 | Iowa | 1868
administrator. Plaintiff introduced evidence tending to show the contract with Bates in his lifetime, for the purchase of the land. Under A this contract, plaintiff paid five dollars down, and agreed to send to Bates $1,000 by express, to the care of Kellogg. The evidence showed that a package purporting to contain money, arrived at Nevada, directed to Bates, in the care of Kellogg. Bates was advised of the arrival of the money in the express office, and on the day before his death stated that the" plaintiff had performed his contract, and had a deed drawn up for him. Bates signed this deed, but his wife did not execute it, and it was never delivered. Kellogg, instead of delivering the package containing the money, to Bates, or some one for him, delivered it to one Fowler, who immediately left, and has not since been heard from.
The court instructed the jury, that if Fowler was the plaintiff’s agent, and authorized to receive or take the money from Kellogg, the plaintiff could not recover.
These instructions were not excepted to, and are not assigned as error. The parol contract accompanied by a payment of part of the purchase-money makes, under the statute, a valid agreement even although there was a prior unstamped written memorandum.
It must be taken then, that Bates consented that Kellogg should act for him, hence the plaintiff is not responsible if Kellogg failed to deliver the money to the right party.
After this testimony was given the court refused to exclude it, and the defendant excepted.
It is insisted by the defendant, that under section 3982 of the Revision, this evidence is incompetent, because the defendant was the executor of a deceased person, and the fact testified to transpired before his death. In our judgment the testimony was admissible.
The other evidence had established the contract; the fact that the plaintiff was to send $1,000 by express; that a package containing money had been received at the express office in Nevada, directed to Bates, in the care of Kellogg, — all as agreed; but there-was no evidence as to how much the package contained. Fowler, who received it from Kellogg, had absconded. No other person than the plaintiff knew how much it contained.
From the necessity of the case, we think it was competent for the plaintiff to testify to the amount or sum that it contained when he deposited it in the express office.
This is analogous to the well known rule which allowed a party, though disqualified to testify generally, to give evidence of the contents of his lost baggage or trunks in an action against a carrier or innkeeper.
The section of the statute just named did, not intend, with respect to cases in which an executor was an adverse party, to make the rule as to the competency of evidence more strict than it was at common law, and at common law the evidence, for the specific purpose for which it was offered and used, was, from the necessity of the case, regarded as competent.
The judgment in this case against the executor is in form erroneous.
It should be corrected, so as to require the sum recovered to be levied of the goods and chattels of the deceased, in the hands of the defendant to be administered. Voorhies & Co. v. Eubank, 6 Iowa, 274; Foteaux v. Lepage, id. 123.
The judgment below will be affirmed, and the cause remanded to the District Court, that the correction above suggested may be made.
Affirmed.