109 Mo. App. 193 | Mo. Ct. App. | 1903
(after stating the facts). — Appellant’s contention is that Scullin was an incompetent witness for any purpose and cites section 4652, Revised Statutes 1899, as sustaining this contention. Counsel misconceives the scope of that clause in the section which declares that “in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor,” etc. Some of the earlier cases construing this clause of the section seem to lend some support to appellant’s construction, but the later ones have given it a more equitable construction and hold that the surviving party is not absolutely cut off from testifying at all, but is a competent witness to conversations, transactions, etc., had with and testified to by a living witness, in respect to the contract or cause of action in issue and on trial. [Kirton v. Bull, 168 Mo. 622, 68 S. W. 927, and cases cited on page 631; Eyermann v. Piron, 151 Mo. 107, 52 S. W. 229.]
As was said in Henry v. Buddecke, 81 Mo. App. 360, "The spirit of the statute is not to close the mouth of the living party to a contract, where the other party is dead, under all conditions and in every circumstance, but to close his mouth, where to permit him to speak would give him an advantage which he would not have were the other party living.” The transactions and conversation to which Scullin was admitted to testify were had with the appellant, a living person. And it would be a hard rule to admit plaintiff to testify to conversations and promises made to her by Scullin and then deny bim the right to contradict such conversations and agreements, if not true. This view of the competency of Scullin to give testimony he was admitted to give, disposes of appellant’s objection to the instructions given and refused by the court. The insjrue
The judgment is affirmed.