So much of the section as comes into question reads as follows: “No person having a pecuniary interest in the result of the suit or proceedings shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding.”
Defendant refreshed his recollection by referring to a book in which he had made contemporaneous entries; but it is conceived that this made no difference in the application of the rule of exclusion prescribed by the statute. Plainly, then, stated in its best form for appellant, the inquiry is whether, in testifying as to the length of time he had cared for the cattle of deceased and the number on hand each day during the period — nothing more — defendant testified as to a transaction with deceased.. Plaintiffs saved their exceptions to the ruling in this form. But let it be noted at this point that the evidence to which exceptions were reserved was not offered to prove an express original promise on the part of the deceased to pay for the feeding of the cattle, nor to fasten liability on his estate by way of an implied' promise so to pay. Nor was it offered as going to show the agreement for a credit, which agreement alone was the precise obligation defendant was seeking to enforce, and as to' which the issue in the cause stood for decision on the testimony of entirely unobjectionable competency. The evidence under consideration had no tendency to prove the alleged agreement for a credit nor any bearing on that question, save as it tended to prove collateral facts, the effect of which was to change the aspect of the case as previously developed by defining the full meaning and operation of the agreement for a credit, if established, and for that purpose it was, we think, admissible under the rule of Miller v. Cannon, 84 Ala. 59, 4 South. 204.
But appellants rely upon Miller v. Cannon as establishing the-inadmissibility of this testimony. It will be observed in respect, of the opinion in that case that Chief Justice Stone, while reviewing some previous cases and undertaking to formulate a comprehensive statement as to the interpretation of the stat
After the decisions to which we have referred, and other of our cases illustrating the application of the rule of exclusion, to be cited hereafter, it may seem hardly necessary to go -out of this state for authorities; still it may contribute something to a definition of the idea which we think must control our decision on this point to note the language and rulings of some other courts in construing similar statutes. In Moores v. Wills, 69 Tex. 109, 5 S. W. 675, it is said in general terms that the rule of exclusion does not apply to evidence of facts and circumstances which, though affecting a transaction, constitute no part of it. This is a shorthand, and yet adequate, rendition of the
See Heyne v. Doerfler, 125 N. Y. 505, 26 N. E. 1044.
Ross v. Ross, 6 Hun (N. Y.) 182, containing substantially this definition, is quoted with approval in Duggar v. Pitts, 145 Ala. 358, 39 South. 905, 8 Ann. Cas. 146. And in Lerche v. Brasher, 104 N. Y. 157, 10 N. E. 58, where an attorney sued for compensation for services rendered, and the contract of employment was proved by evidence open to no criticism, the plaintiff was allowed by the Court of Appeals to have been competent to testify that he got the papers in the case from a firm of attorneys and went to Albany to prepare the case for the Court of Appeals, these being in the opinion of the court, “independent facts, in which the deceased was not personally a participator and which, if living, he could not, for that reason have contradicted.” In Sullivan v. Latimer, 38 S. C. 158, 17 S. E. 701, “transaction” is said to imply mutuality — something done by both parties acting in concert, in which both take some part. In Belote v. O’Brian, 20 Fla. 126, the word “transaction” was defined to mean “the doing or performing of any business, the management of an affair, the adjustment of a dispute between parties by mutual agreement,” and plaintiff was allowed to testify as to the value of articles furnished and labor performed for deceased as being wholly independent of any personal transactions or communications with the deceased. In some of the states the statute on this subject excludes evidence of “personal transactions” with the deceased whose estate is interested. With statutes so worded our statute is precisely assimilated by the definitions of this court. And in those states “the rule of the statute does not operate to close the mouth of a witness as to any matter of fact coming to his knowledge in any other way [than] through personal dealings with the deceased person, or communciations made by the deceased to the witness in person. This is not only the language of the statute, but it is the thought
In that case the question was whether certain deeds of property in controversy had been delivered during the lifetime of the deceased grantor. A party in interest was allowed to testify in relation to his custody of the private papers of the deceased, including the deeds in question, during the lifetime of the latter. In Hutton v. Doxee, 116 Iowa 13, 89 N. W. 79, where the plaintiff sued the estate of his father, deceased, on a count for damages growing out of the alleged failure of the deceased to perform a contract whereby he agreed, on consideration of services to be performed by plaintiff on a farm, that he would make to plaintiff a deed of the farm, plaintiff was allowed to testify that he had taken possession of the farm and worked it for a number of years, making improvements thereon, these facts not constituting personal transactions with the deceased. In Britt v. Hall, 116 Iowa 564, 90 N. W. 340, the plaintiff in an action against an executor under a statute authorizing an illegitimate to inherit from the father in case he had been recognized, plaintiff’s testimony as to the receipt of letters from her putative father recognizing the relations between them was received as not being evidence of a transaction with deceased. In Ah How v. Furth, 13 Wash. 550, 43 Pac. 639, a case in which the respondent sued, an estate to recover for domestic services rendered to the deceased, it was held that the testimony of respondent that he worked at the house of the intestate and the character of the work performed by him was not testimony in relation to a “transaction had by him with, or any statement made to him by,” the deceased. In Daniels v. Foster, 26 Wis. 686, a suit to foreclose a mortgage, the defendant sought to prove payment and a counterclaim for services, money advanced, etc., to the deceased mortgagee, and introduced letters of the deceased acknowledging payment, and testified to their genuineness, and that he received them by mail, and from that evidence the court found the mortgage satisfied. On appeal Dixon, C. J., made this exposition of the statute: “The statute forbids the examination of a party, in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person.
And in Relden v. Scott, 65 Wis. 425, 27 N. W. 356, where plaintiff sued an executor for the value of work and labor done in keeping the books of deceased, it was held that plaintiff was a competent witness to prove that he kept the books of deceased, and with how much labor, and the value of these services. These are some of the cases. There, are others of like tenor. See, also, Jones on Ev. §§ 785, 786, and notes. So the thought of our cases, though their expressions are scant on the point, is that a witness interested in the result of a suit or proceedings, though incompetent to testify as to any transaction with the deceased, may testify to any matter of fact coming to his knowledge in any other way than directly through personal dealing with the deceased. — Borum v. Bell, 132 Ala. 85, 31 South. 454; McDonald v. Harris, 131 Ala. 359, 31 South. 548; Stiff v. Cobb, 126 Ala. 384, 28 South. 402, 85 Am. St. Rep. 38; Gamble v. Whitehead, 94 Ala. 335, 11 South. 293; Ala. G. Life Ins. Co. v. Sledge, 62 Ala. 566; Tisdale v. Maxwell, 58 Ala. 40; Miller v. Clay, 57 Ala. 162; Cousins v. Jackson, 52 Ala. 262, as qualified in Miller v. Cannon, supra. The facts of these cases are readily accessible to the profession, and we will not stop to state them. In the present case defendant had fed and pastured the cattle on the plantation of deceased, where he was a tenant, more or less remote from his landlord’s place of residence and business, and his testimony was carefully limited to what occurred on the plantation, facts involving no direct or personal communication or transaction with deceased. It does not even appear that plaintiff’s testator, if alive, would have any direct personal knowledge of the facts, or would be able, out of his own recollection, though his memory were ever so good, to contradict defendant in the particulars testified to by him. It results, in our opinion, that defendant’s evidence as to the number of cattle fed by him, and the length of time they were fed, does not fall within the common-law inhibition which has been perpetuated by the exception of section 4007 of the Code. A fortiori, defendant’s testimony as to the value of the feeding and care of the cattle was admissible. Deceased, no more than any one else, had informa
Dismukes v. Tolson, 67 Ala. 386, is cited by appellants. That case was cited, arguendo merely, to Mobile Savings Bank v. McDonnell, 87 Ala. 736, 751, 6 South. 703, 709, where its effect is thus stated: “We there ruled that original entries made by a defendant in his own shop books, although admissible ordinarily in his own favor under certain restrictions, as an exception to the common-law rule excluding parties, could hot be proved by himself, in a suit brought by the administrator of a deceased person, where such entries had reference to a transaction with the deceased in his lifetime.”
In First National Bank v. Chaffin, 118 Ala. 246, 24 South. 80, Dismukes v. Tolson was cited to the proposition that the books offered in that case were not admissible, because the witness who undertook to make formal proof of their regularity and accuracy had no first-hand knowledge of those facts. In Murray v. Dickens, 149 Ala. 240, 245, 42 South. 1031, Simpson, J., correctly noted the fact that Dismukes v. Tolson went off entirely on the point that the witness was not competent to testify to the correctness of the book, because it involved transactions with a deceased party, and that there was no ruling that the books Would not have been admissible had the witness been qualified to make necessary preliminary proof. Indeed, the cited text (1 Greenl. on Ev. § 120) shows that it is because the entries are contemporaneous and ordinarily and naturally belong to the principal thing done — generally the delivery of goods by shopkeepers — that book entries are admitted, and it makes no difference, as to their admissibility, whether the party who made them was or was not interested in making them,-his interest going only to affect the credibility or weight of the evidence when received. The case has been frequently cited as authority for other propositions which therein had incidental statement; but, so far as we have been able to find, the precise point on which it was decided has never since been brought into question.
The decision in Dismukes v. Tolson, supra, on the turning point of the case, had no precedent in this state. And at common law, while generally a party could not testify, yet he could give in evidence his books of account, supported by his own suppletory oath. He was allowed to testify, not as a general wit
A witness for plaintiffs, Warten’s bookkeeper, testified that he wrote the check and the indorsement which was on it when deceased signed it. We infer that the bookkeeper handed the check to defendant, and afterwards it was delivered by defendant to Frost in payment for the horse. Frost stated his recollection to be that the “statement” was not on the check when delivered to him. Defendant also was permitted to testify that the indorsement was not on the back when it was handed to him. Appellants assign this ruling for error. In addition to what we have already said on this general subject, we cite cases which appear to be more closely in point, and which sustain the ruling of the court below admitting this peculiar negative testimony. — Frank v. Thompson, 105 Ala. 211, 16 South. 634; Blount v. Blount, 158 Ala. 242, 48 South. 581, 21 L. R. A. (N. S.) 755, 17 Ann. Cas. 392. Frank v. Thompson was overruled in Payne v. Long, 131 Ala. 438, 31 South. 77; but the effect of the ruling in the latter case was in turn limited in Blount v. Blount, supra, where it was held that a party in interest ought to be allowed to go so far as to simply deny that he had a transaction or conversation with the deceased, whose estate is interested in the result of the suit or proceeding.
Witness credited the amount to the unsecured account. Appellants say on this evidence that the charges were faulty, and should have been refused, for the reason that they pretermitted any question of waiver by the defendant of the actual application of the credit so made and his ratification of same. We do not find that the evidence called for the suggested qualification of the charges. It was defendant’s right to direct the application, and he had a right to assume, in the absence of information to the contrary, that it would figure in the settlement according to his direction. He did direct it, and this put upon plaintiffs the burden of showing that then or subsequently he agreed nevertheless, to a different application. But there is nothing to warrant the inference that, either at the time or subsequently, he acquiesced in the application which the bookkeeper attempted to make.