Trahern ex rel. Trahern v. Colburn

63 Md. 99 | Md. | 1885

Miller, J.,

delivered the opinion of the Court.

This was an action of assumpsit brought in March, 1881, "by Mrs. Trahern, a married woman, by her husband and next friend, James F. Trahern, against the executor of Sophia E. Stimpson, deceased, to recover a considerable ■amount of money, alleged to he due and owing to the plaintiff by the deceased in her life-time. The declaration contains the common counts, and on demand a bill of particulars was furnished setting out the several items of •claim aggregating $10,653.40. The case was tried upon issues made up under the pleas of non assumpsit, limitations and plene administravit.

At the trial a single exception was taken. The plaintiff •offered to prove by her husband and prochein ami the several items stated in the hill of particulars, and this offer is set out at length in the exception. The defendant objected to the competency of the witness to testify, “and to the facts set forth in said offer.’' The Court sustained this objection, and to this ruling the plaintiff excepted.

The objection to the competency of. the witness is founded on that clause of our Evidence Act which makes ■an exception to its general provisions, and declares that where an original party to a contract or cause of action is dead, or where an executor or administrator is a party to the suit, neither party shall he admitted to testify on his own offer or upon the call of his co-complainant or co-defendant otherwise than now by law allowed, unless a nominal party merely. We are of opinion a prochein ami is not a party to the suit within the meaning of this clause. It is true he is responsible for costs, and competent to make a suggestion for the removal of the cause, hut he is not a party to the suit in the technical sense of the term. In contemplation of law he is considered an officer of the Court specially appointed by it to look after the interests, of the party in whose behalf he acts, (though according to our practice no actual order making the appointment is-ever passed), and it is competent for the Court to revoke his authority and remove him, and, if necessary, appoint another in his place. Deford vs. State, use of Keyser, et al., 30 Md., 179; Balto. & Ohio R. R. Co. vs. Fitzpatrick, 36 Md., 619. In the English Evidence Act, (6 and 7 Vict. ch. 85,) which, like our statute removes the incapacity of witnesses on the ground of interest, there is a proviso,. “ that this Act shall not render competent any party to. any suit, action, or proceeding, individually named in the record,” and the case of Sinclair vs. Sinclair, 13 Mees. & Wels., 640, which was an action of assumpsit by an infant who sued by his next friend and father, the question was. directly presented, whether the prochein ami was competent to testify for the plaintiff, and the Court held that he could not be considered a party to the suit, and was competent to testify, the Act having removed all objection to-his' competency on the ground of interest in respect to his-liability to costs, or any other liability that may attach to him as being the prochein ami in the suit. But it has. been ingeniously argued that the offer is, among other things, to show by this witness that he was the agent of the deceased in disbursing the several sums of money claimed in the bill of particulars, and that, as she is now dead, it is not competent for him to prove the contract of agency between them. But in answer to this argument it is sufficient to say, that the contract of agency as between the witness and the deceased is not the contract upon which the suit is brought, and it has been expressly decided that that part of this clause which speaks of “ an original party to a contract or cause of action,” means, the contract or cause of action which is in issue and on trial. Wright, Executor of Wright vs. Gilbert, Executrix of Gilbert, 51 Md., 157. In the case of Standford vs. Horwitz, Adm’r of Davis, 49 Md., 525, the sole matter in controversy was whether a note secured hy a mortgage was tainted with usury, and the witness was shown to be a party to and liable on this same note. He was therefore in fact a party to the contract in dispute, and was offered as a witness on the part of the party contending for the usury, to assail in part, the validity of this contract, the other party thereto being dead, and the Court very properly held that he was incompetent and came directly within this clause of the statute. Besides it was never doubted, before the passage of this Act, hut that an agent was a competent witness to prove his own authority if it was hy parol (1 Greenlf. on Ev., sec. 416,) in any case between third parties, whether his principal was alive and a. party to the suit, or dead, and his personal representative a party; and it has always been held that the effect of this Act was not to render incompetent witnesses that were competent under the law as it previously stood, the chief object and purpose of the statute being to remove the incompetency of witnesses, not to impose additional restrictions. Downes, Ex’r of Downes vs. Maryland and Delaware R. R. Co., 37 Md., 104. The obvious answer also to the argument that the offer shows that the witness is directly interested in fixing this liability upon the estate of the testatrix, because he was liable over to his wife for every dollar of these claims, is that the statute has removed all objections to the competency of witnesses on the ground of interest.

If we assume that the other branch of the exception raises the question whether the testimony set out in the several parts of the offer is competent and admissible, or irrelevant and inadmissible, still the objection, going as it does to the whole, ought to have been overruled if any part of it was admissible. Hatton vs. McClish, 6 Md., 407. And we cannot doubt hut that a portion of it, at least, was admissible. For instance one part of the offer is to prove by this witness that he disbursed and paid out •the sums specified in -the 12th, 13th, 14th and 15th items -of the bill of particulars, in and about the business of Sophia E. Stimpson, the same having been obtained from •and furnished by the plaintiff at the instance and request of the said Sophia, and paid out and expended as above ■stated at her instance and request. By this we understand the offer to be to prove that Sophia E. Stimpson requested the plaintiff to furnish this money to her, and that she •did so furnish it, and that it was disbursed by the witness for these items also at the request of the said Sophia. We ■can see no possible objection to the admissibility of this testimony, and this dispenses with the necessity of considering the other parts of the offer. In thus passing ■over these other parts, we are not to be understood as intimating an opinion that the testimony they set out is inadmissible. That question can be more definitely presented on the new trial which must be awarded, as it follows from what we have said that there was error in the ruling excepted to.

(Decided 22nd January, 1885.)

Judgment reversed, and new trial awarded.