Bennett & Lockwood v. Frary

Gould, Associate Justice. 1. The plaintiff was admitted to testify, not as to anything that transpired between him and the deceased partner, Bennett, nor as to any statement by Bennett, but as to what passed between him and the living partner, Lockwood; and although his testimony went to establish a contract with the firm, we think it was rightly omitted. R S., art. 2248. ■The disqualification to testify is only “as to any transaction with, or statement by,” the deceased, arid neither literally, nor in its spirit or reason, does it preclude a party from testifying as to a statement by, or a transaction with, one who is still living, and who may therefore testify himself as to the same matters. The statutes of different states on this subject differ greatly; but the rea-' son of the disqualification has not generally been held to apply iff cases like the present. Says a recent text writer: “'The exception does not incapacitate when the suit is against co-defendants, of whom only one is dead, when the contract was made either with the living co-defendant, or with' the living and the dead concurrently. So when the deceased contracting party was represented in [149] the bargain by an agent who is capable of testifying, then the other contracting party, unless expressly excluded by statute, may be a witness.” Wharton Ev., sec. 469. 2. Whilst the court was mistaken in telling the jury that “the defendants deny any contract whatever with the plaintiff,” we are satisfied that this mistake in stating the defendants’ pleadings could not have misled the jury or have influenced their verdict. Throughout the entire . case it must have been apparent to the jury that the sole issue between the parties was as to the terms of the contract— the fact that there was a contract being denied by neither. 3. The case is one of conflicting evidence, peculiarly for a jury. There was evidence to support their verdict for either party, and, under well established rules, the verdict having been allowed to stand in the district court, will not be disturbed here. 4. We see no error in the refusal of a charge asked making the letter of Ware conclusive as to the terms of the contract—that letter being claimed by the plaintiff to be only the basis of the contract — not the contract itself. The judgment is affirmed. Affirmed: ■ [Opinion delivered April 29, 1881.]