Drew v. Simmons

STONE, J.- In Allison v. Tally, at tbe present term, we noticed tbe differences between section 2704 of tbe Revised Code, and se<ftion 3058 of the Code of 1876, and pointed out wherein tbe present statute enlarges tbe exception CQntained in tbe former one. We also quoted witb approbation tbe decision in tbe case of Key v. Jones, 52 Ala. 238, in which it was said, “when tbe purpose of evidence is to diminish tbe rights of a decedent, or of those claiming in succession to bim, by declarations or admissions made by bim, or transactions bad witb bim, in bis life, no party in interest is a competent witness to prove such admissions, declarations, or [466] transactions.” So, in that case, and in the later case of Allison v. Tally, supra, we gave to the statute a construction, broader than its mere words ; and held that a beneficiary in the suit, though not a party to the record, could not testify in his own interest, to any transaction with, or statement by a deceased person, whose estate would be affected prejudi-cially by the evidence. We further held, in the later case, that the policy of the exception was, to exclude the testimony of a living, interested witness, against a deceased person’s estate, because no one should be heard to testify of a transaction with, or statement by another, who had, in the meantime died, and hence could not confront, and, perchance, contradict the evidence thus given against him or his estate. In the present case, the witness was the person with whom the alleged contract was made. If he had sued, it is clear that he was incompetent to testify in bis own favor as to any transaction with, or statement by defendant’s intestate. To hold that a creditor thus circumstanced can, by a transfer of the claim to another, render himself competent to give evidence which he could not give in his own favor, would be a palpable perversion of the policy of the statute, and might lead to a most shocking abuse. The testimony given, and objected to, would, if believed, have established a prima facie case for recovery of the value of intestate’s board, sued for. And it is too clear for dispute, that the facts proved by each of them, related to a transaction with defendant’s intestate. They raised an implied assumpsit or promise by Peebles, the deceased, to pay a quantum meruit therefor. The Circuit Court erred in admitting this evidence. Reversed and remanded.