Stocks v. Cannon.

Walker, J., after stating the case: The testimony of the *62 plaintiff to which the defendants objected was incompetent. It is clear to us that it related to a transaction and perhaps to a communication with the deceased. It is true the witness did not state in so many words that he had rendered any ser* vices to the testator, but that he had is plainly implied in the questions and answers. It would have been futile to ask the witness about services he had not rendered to the deceased, as the question being tried was whether he had rendered services to him and the value of any services so rendered, and not whether he had rendered services to some one else. The examination, as was said in the argument, was very adroit and skilful, but we do not think the plaintiff succeeded in avoiding the prohibition of the statute, Code, section 590. We must construe and enforce that wise and salutary provision of the law, so as to effectuate the evident intention of the Legislature, which is to exclude even the indirect testimony of an interested witness as to a transaction or communication with the deceased, as the latter cannot be heard in reply. Besides, there is a striking correspondence between the value of the services described in the witness’s answers and the amount of the payment made by the deceased on the one hand and the allegations of the complaint relating to those matters on the other. In his complaint the plaintiff values the services rendered to the deceased at $1,900 and alleges that he has already received for them $309. In his answer to the following question: In these services for three years, mention whose team you used ? A. My own, the witness refers unmistakably to services performed for the testator; and when in the last question he is asked as to the amount received for his “services all that time” and answers, $309, which is the very amount paid by the deceased, how can we escape the conclusion that in his testimony he was referring to services rendered to the deceased? The context discloses that the witness meant, when answering the questions to which objection was taken, to refer to services he had *63 rendered to the testator. When a witness is asked and testifies as to the value of services “rendered,” be necessarily speaks, tbongb perhaps indirectly, of a transaction or communication, as be could not well bave rendered services to the deceased without having bad some sort of transaction or communication with him, the exact nature of which depending upon the kind of services rendered. Davidson v. Bardin at this term; McGowan v. Davenport, 134 N. C., 526. If the testimony did not bave reference to services rendered to the deceased, it was irrelevant, and under the circumstances it was calculated in our opinion to mislead the jury and to prejudice the defendant. We conclude that the testimony was objectionable within the spirit and meaning of section 590 of The Code, as well as within its letter, and should bave been excluded on that ground, and if not on that ground, then it should have been rejected for the other reason assigned. For the error in admitting it, a new trial is ordered. Tbe other exceptions are not passed upon, as the case may be differently presented at tbe next trial. It may be well, though, for the defendant’s counsel to consider whether the rule be invokes, that a legacy to a creditor is presumed to be in satisfaction of bis debt should be applied to a case where tbe amount of tbe creditor’s claim is not fixed. -In this ease the jury found it to be much larger in amount than the legacy. Bispham in his.Principles of Equity (6th Ed.), p. 664, section 538, says: “Where one person is under some legal or moral obligation to another, and under those circumstances makes a gift of such a nature that it operates as an exact fulfilment of the obligation, there arises a presumption that it was the intention of the donor to discharge the obligation by making the gift; in other words, the gift is presumed to be in satisfaction of the obligation, and hence this presumption, which had its origin in courts of chancery, has given rise to what is known in equity as the doctrine of *64 satisfaction.” He further says on the same page that the doctrine has frequently been regarded with no little disfavor, and the presumption of the testator’s intention, upon which it is founded, can be rebutted by slight circumstances, evidence of his express intention being admissible and that presumptions may be drawn from surrounding circumstances, by which the supposed intention that the gift should operate as a satisfaction may be contradicted or controlled. He further says, “It is a general rule both in England and in this country that a legacy given by a debtor to his creditor, which is equal to or greater in amount than the debt, shall be presumed to be intended as a satisfaction of the debt, but it must be not only equal in amount, but equally beneficial and of the same nature exactly. It will be observed that this statement of the rule both indicates the general doctrine and also suggests some considerations by which its application may be controlled.” Bisp., p. 664. The doctrine as thus stated seems to be recognized by this coiirt in Ward v. Coffield, 16 N. C., 108, and Perry v. Maxwell, 17 N. C., 488. We do not decide this interesting question raised by the fact that the testator bequeathed $500 to the plaintiff, as a new trial has been awarded, and we prefer to leave the matter open to be decided upon the .facts as finally ascertained. They may not be the same as those we now have before us. New Trial.