Card v. . Card

In the present state of our legislation upon the subject, a party to a suit is competent to testify on his own behalf. He may not testify to transactions had personally by himself with the deceased person whose representatives are defending an action the cause whereof is alleged to arise out of the contract of the deceased with such plaintiff. The plaintiff was, therefore, not a competent witness to prove directly a negotiation with the deceased, nor an agreement by the deceased to convey the land, nor to give any testimony to what happened in any mere transaction or interview with the deceased personally. But, that he was competent to testify to any relevant matter, not being a transaction with such deceased personally, is not doubtful, nor do I understand it to be questioned in this appeal. The refusal to permit him to be sworn as a witness was not sustained as a correct application of the rule, in the court below, but it was held immaterial, on the ground, that, as he could not testify to any transaction with the deceased personally, the refusal to permit him to testify wrought no prejudice. Not having proved the fact of a contract with the deceased, he could not supply the defect by his own testimony, *Page 319 and, therefore, he could not, whatever he testified, have had a judgment in his own favor. This view of the subject proceeds upon one of two assumptions, — either, that the restriction that the plaintiff may not testify to transactions had with the deceased personally means that he may not testify to any facts which tend to show that a contract between him and the deceased was made, and was performed by him; or that it is not possible to conjecture that there are any such facts, which being proved would warrant such an inference. While I think, that, in a case of admitted error, the court on review ought not to indulge in conjecture whether the error was prejudicial, and should reverse, unless it was beyond doubt that no harm to the party was possible, I am clear that both of the assumptions stated are erroneous. The restriction in question is intended to prevent the party from testifying to the personal act, declaration, or conversation of the deceased. These are matters which, if he were living, he might explain, qualify, or contradict; but it does not prevent all testimony coming from the lips of the party which, if believed, might tend to establish the fact in issue, viz., that the transaction alleged to have taken place with the deceased did happen as alleged. Illustrations may be suggested apt to the present case, which show that the plaintiff might testify to facts not within the restriction, and, yet, which would warrant the inference that a contract for the conveyance of the land was made by the deceased. And the pertinency of such illustrations is quite distinctly apparrent, when it is observed, that, in the court below, the suspicion was deemed warranted, that the plaintiff's claim was an after-thought, gotten up after the decease of the ancestor, in reliance upon the disadvantage in the defendants' position, in making proof unaided by the suggestions of the party by whom the contract was alleged to have been made. The plaintiff was, and had been for several years, in the occupation of the land in question. It is plain, I think, that there were many facts connected with such occupation not *Page 320 involving any transaction with the deceased personally, to which the plaintiff might testify, and which, if true, tended to show that such occupation was as owner, in the expectation of receiving a conveyance, and in the performance on his part of just such a contract for the conveyance, as the plaintiff alleged in his complaint. The manner of his occupation, the disposition he made of the proceeds of the farm to his own use, his expenditures thereon, the making of large and expensive improvements in the erection of buildings or otherwise upon the premises, his actual support of the wife of the deceased for several years (that being a part of the alleged consideration of the alleged contract), — these and other circumstances might influence the judgment of the referee on the question, whether he had been acting as owner, and in expectation of a conveyance, and tend not remotely to an inference that some contract therefor existed. Not only so, but the court cannot say, that if sworn he might not have testified to admissions by the defendant's themselves, that such an agreement with the deceased, their ancestor, was made, and had been performed by the plaintiff on his part. This would be clearly competent, and yet it would tend to prove a transaction, to wit, a contract with the deceased, of whom, in respect of the title to this land, they were the representatives. In my judgment, therefore, it is not possible to say, that the plaintiff could not have testified, if sworn, to any fact material to his case. On this ground the judgment should be reversed. The question, whether husbands were competent to testify in behalf of their wives, or wives on behalf of their husbands, it is not profitable now to discuss. If a new trial shall be ordered herein, they will be competent to testify under the law which has been amended since the trial of this action.