Wood v. Brewer & Brewer

73 Ala. 259 | Ala. | 1882

STONE, J. —

What are to be considered transactions with, or statements by deceased persons, under section 3058 of the Code of 1876, is a cpiestion which very frequently comes before us. To come within the former class, it must be some act done by the deceased, or in the doing of which he personally participated. To be within the latter class, there must have been a conversation to which he was a party, in which his Statements, replies, or presumed admission from silence are sought to be introduced in evidence. In each case, to fall within the prohibited line, the transaction or statement must he of such a character, and so connected with the deceased, as that, if living, the presumption would be he could deny, qualify, or explain it. This is the sense of the rule. The legislature, by it, intended to deny to living suitors the advantage they would otherwise have over the estates of deceased adversaries, if permitted to testify to transactions with, and statements by such adversaries, after death had rendered it impossible that such adversaries could be heard in reply. If the testimony relate to a transaction with another, or fall not within the class supposed to be particularly within the knowledge of the deceased, neither the rule of exclusion, nor the reason of it applies. — McCrary v. Rash, 60 Ala. 374; Tisdale v. Maxwell, 58 Ala. 40; Boykin v. Smith, 65 Ala. 294; Killen v. Lide, Ib. 505. None of the testimony of the witness Graham, given on his first or last examination, related to any transaction with, or statement by defendant’s testator, and the circuit court did not err in receiving it.

There was no error in allowing the witness Mounce to testify that he worked on Wood’s plantation with Graham. It was very proper he should be allowed to so testify, for it tended to show the witness’ knowledge of the matters he testified about. It certainly gave the witness better opportunities of knowing that Graham labored on the place, and the value of his services. It was proper for the jury to know this, for it tended to strengthen his testimony.

Against the objection of defendant, the witness Mounce was allowed to testify, that? when he worked on testator’s plantation (the same year when tlie alleged services of Graham were performed, for which this suit is brought), Wood, defendant’s testator, employed him, and paid him for his services. The present suit is for work and labor alleged to have been done and performed by Graham at the request of "Wood. The defense is, that if such service was performed, it was at the instance and request of Hall, and not of Wood. As we said when this case was before in tin's court — 66 Ala. 570 — the plaintiffs’ claim is presented in two aspects; on an alleged express contract made between Wood and Graham, and on an implied promise by Wood to pay Graham the value of services rendered by the latter on the plantation of the former, with his knowledge and consent. Whether the law would imply such promise on the part of Wood, would depend largely on the further inquiry, on whose account, and under whose control was the plantation cultivated that year. For the law implies a promise to pay for services and work rendered, only against him who is benefited by such labor. Testimony was given for defendant that Wood’s jilantation was leased that year to Hall, who was to .control the place, hire the labor, and pay rent to Wood for the use of his lands and stock. There was also testimony tending to show that Wood had said he wanted some hands on his plantation that year. The inquiry was thus raised, who had the control and direction of the place during that year- — Wood or Hall. Now, as an independent proposition, the fact that Wood hired Mounce to labor on the place, and paid him for his labor, was not legal evidence to prove he also hired Graham, and agreed to pay him. It was, however, if believed, an act of control — of proprietorship — which furnished some evidence that the crop was being made on Wood’s account. Why employ and pay for labor to work in the crop,if that crop, when matured, was to be Hall’s? The circuit court did -not err in admitting this evidence.

. There is no error in the charges given. An agent who contracts in his own name, without disclosing that he is acting for a principal, incurs "a personal liability, which is primary in its character. — 1 Brick. Dig. 66, §§ 210, 214. The charge asked was properly refused, under the principles declared above.

Affirmed.