85 Md. 674 | Md. | 1897
delivered the opinion of the Court.
Apollonia Warth, executrix of Albin Warth, brought an action against Brafman et al., trading as A. Brafman & Sons. The verdict and judgment being against her, she has appealed. The cause of action was a contract relating to a machine for cutting out clothing alleged to have been made by Henry Warth, in the year eighteen hundred and ninety, as the agent of Albin Warth, who died in May, eighteen hundred and ninety-two. The contract was not in writing. It may be stated in general terms that the contested question of fact in the case was whether the verbal contract embraced the terms of a written instrument, which was offered in evidence. Heniy Warth testified that it was based on
If the contract had been made with the deceased, the witness would not have been competent to testify. But the second section of Article 3 5 of the Code leaves no doubt on this question. It enacts that: “Whenever the contract or cause of action in issue and on tidal was made or contracted with an agent, the death or insanity of the principal shall not prevent any party to the suit or proceeding from being a witness in the case ; provided such agent shall be living and competent to testify.” No critical analysis however subtle can render the meaning of this clause in any degree obscure. The agent who made the contract and the principal on the other side are placed on terms of exact equality. Each is a competent witness, and each can be heard to testify to any fact or circumstance which under the
Judgment affirmed.