Wheeler v. Campbell

68 Vt. 98 | Vt. | 1895

TAFT, J.

It was not error to admit parol testimony to show that that the consideration of the conveyance of the Canadian property from George H. Wheeler to the plaintiff was not the one expressed in the deed. It is not essential that the actual consideration of a deed be expressed therein. It may be shown by parol. Wood v. Beach, 7 Vt. 522.

The defendant insists that it was error to permit the plaintiff to state his understanding of the contract, andnotthe facts of the case. The defendant did state the facts. He stated that he remained at home “upon a family parol understanding and agreement” that he should have the farm in consideration of paying his father’s debts and supporting his parents through life, that his brother was a party to the understanding and agreement, and that, having fulfilled the agreement on his part, in pursuance of such understanding, he took a conveyance, from his brother, of the latter’s interest in the farm. He further stated that he understood his brother had no interest in the farm because he, the plaintiff, had fulfilled the contract or understanding as above stated. The plaintiff paid no money consideration to his brother at the time of the conveyance, but, he testified, that the deed was given and received in pursuance of said long standing agreement. The honesty of the transaction was brought in question, and as it was to a great extent the understanding of the parties that constituted the contract between them, the plaintiff had a right to state how he understood the matter, both as to establishing the contract, and as bearing upon his good faith. What a person understands is often admissible as in Linsley v. Lovely, 26 Vt. 123 ; State v. Lockwood, 58 Vt. 378.

The wife of George H. Wheeler was a competent witness. Her husband was not a party to the suit and could not be affected by any judgment rendered therein. Her competency was not affected by s. 1240, V. S. She was competent at common law. That she could testify to conversations between her husband and a third person, see Higbee v. McMillan, 18 Kan. 133; Mercer v. Patterson, 41 Ind. 440; Griffin v. Smith, 45 Ind. 366.’ The testimony of Mrs. Wheeler was admissible. She testified she saw the plaintiff give her husband money, saw them figuring their accounts, and heard the remark: “That is all right, that makes up the six hundred dollars.” The testimony was admissible to identify the occasion. Hill v. North, 34 Vt. 604, and as characterizing the act of figuring the amount of the accounts and payment of the money. Ross v. Bank, 1 Aik. 43 ; Barber v. Bennett, 58 Vt. 476.

LaFoe, the real defendant, testified that before attaching the property in question the plaintiff told him it belonged to to his brother, and that he, LaFoe, relied upon the statement in making the attachment, and requested the court to charge, if that fact was found, it would estop the plaintiff from now claiming it. It does not appear that the plaintiff was inquired of concerning the property, nor, if so, that he was informed of the object of the inquiry. The plaintiff’s interest was that of a mortgagee and it does not appear that he made any representation as to his mortgage interest. That the alleged statements, if made, would not constitute an estoppel, see Hicks v. Cram, 17 Vt. 449; Strong v. Ellsworth, 26 Vt. 366; White v. Langdon, 30 Vt. 599; Shaw v. Beebe, 35 Vt. 205 ; Soper v. Frank, 47 Vt. 368.

Judgment affirmed.