Myers v. Litts

Opinion by Mb. Justice Fell, The assignment to be noticed relates to the competency of the plaintiff as a witness in his own behalf. The action was trespass to recover damages for the alleged wrongful removal and sale of stock and farming implements, the right to the possession of which the plaintiff claimed. The property in question was owned by Susan A. Vosburg. The plaintiff claimed that he had entered into an oral lease with her for her farm and the stock and implements for one year, and his right to the possession of the property was based on the. lease. The defendant Litts sold the property at auction as agent for Mrs. Vosburg under a written power of attorney. The question of fact on which the case turned was whether a lease had been made. Mrs. Vosburg died before the trial. When the plaintiff was called to testify in his own behalf there were fifteen defendants, fourteen of whom were purchasers at the sale and had no other connection with the matter. The offer was to prove by him the oral lease, and thus to establish his title as against that of the deceased grantor of the defendants, who was “ a party to the thing or contract in action,” and whose right thereto had passed by her act to the defendants on the record. The exclusion of the plaintiff as a witness is fully sustained by the decisions in Arrott Mills Co. v. Way Mfg. Co., 143 Pa. 435, Crothers v. Crothers, 149 Pa. 201, and Baldwin v. Stier, 191 Pa. 432. The witness being incompetent his wife was also incompetent: Bitner v. Boone, 128 Pa. 567; Sutherland v. Ross, 140 Pa. 379. The fourth assignment cannot be considered, as it is in violation of the rules of this court in not setting out the testimony given under the offer to which objection was made. The judgment is affirmed.