Miller v. Frick

Hbisel, J., delivering the opinion of the court: This is an action of replevin by the administrator of Catharine E. Frick for the recovery of certain pieces of jewelry and household furniture from the plaintiff in error, William P. Miller. The jewelry was delivered by Miller to the sheriff. The furniture, which was held by Miller under a property bond, was in a hotel, owned by him, and managed or operated by Catharine E. Frick, the deceased, during her lifetime at 807-9 French street, Wilmington, and in her possession at the time of her death. The furniture in question was claimed by Miller to be his property. It was also claimed by the administrator of Catharine E. Frick to be her property. There are five assignments of error. The first four assignments relate to the charge to the jury. As to these, we think it sufficient to say that the charge of the court below was full and complete and stated fully and carefully the principles of law applicable to the facts of this case, and we find no error therein. The fifth assignment of error charges that the court erred in striking out certain testimony of the defendant below, Miller, [377] and in deciding that said testimony constituted a transaction with the deceased, and, therefore, incompetent under our statute. The testimony was offered to show pa3unent by Miller to the furniture company, from whom he claimed they were purchased, for certain articles described in the writ. For this purpose, checks signed by Miller payable to the furniture company were offered in evidence. In the course of Miller’s cross-examination, he testified that the articles, for which he had paid with the checks, had been purchased, by him, from the furniture company, through Catharine E. Frick, the deceased. This testimony the court rejected. It will be remembered that the principal question in dispute between the parties was the ownership of the property described in the writ and not delivered to the sheriff. It appears some of the property was bought from a furniture company, and billed to Miss Frick, delivered to her and in her possession, at the time of her death. Those things would be evidence from which ownership on her part might be inferred. To rebut the inference to be drawn from this evidence, plaintiff endeavored to testify that he had bought the property through her; that is, while the property may have been delivered to her and in her possession at the time of her death, nevertheless, she was not the owner, but was acting simply as his agent. If she was acting as his agent and not for herself, it must have been because of some agreement or understanding of some kind between them. Was such agreement or understanding a transaction with her within the meaning of the statute? The court in Krause v. Emmons, 6 Boyce, 104, 125, 97 Atl. 238, 247, said: “It clearly appears from our statute that in actions by or against executors, etc., the parties are not disqualified from testifiying in their own behalf, but are disqualified only from giving testimony concerning any transaction with or statement by the testator, etc., unless they are called to testify by the opposite party. “The purpose of the Legislatures in passing statutes of this kind is equality. In this state the intention was to prevent both parties, unless called as a witness by the opposite party, giving testimony of transactions with or statements by the deceased, concerning which the deceased, if living could of his own knowledge contradict, corroborate or explain. [378] “So much depends upon the particular facts in each case, that it would practically be impossible to define the word ‘transaction,’ as used in the proviso, in terms sufficiently comprehensive so as to include all facts which would be considered a transaction, and at the same time exclude all facts which would not be a transaction within the meaning of the act. “In general terms a transaction, within the terms of the statute, may be said to be an occurrence or action of which both decedent and the other party had knowledge, and to which the decedent if living would be equally qualified to testify with the other party.” [1] Under the statute as thus defined, we are clearly of the opinion that the defendant below was attempting to testify to a transaction with the deceased, for to be relevant the testimony must have related to some transaction of Miller with the decedent. Therefore, there was no error in the court in striking out the testimony in question. [2] At the hearing there was considerable argument, on the part of one of the counsel for the appellant, to the effect that the court erred in not admitting into evidence a certain check offered by appellant, at the trial below and ruled out. While it is not at all clear that the assignments of error raise that question, we have, nevertheless, considered it and are of the opinion that the court did not err in refusing to permit the checks to be admitted under the state of the evidence at the time it was offered. The only evidence offered to connect the checks in question with the parties to this action, at the time the checks were offered in evidence, was the evidence of the defendant, Miller, to the effect, that he had given the check to the furniture company in payment for certain property mentioned in the writ, and which he had purchased from the furniture company through the deceased; this evidence we have already held was properly rejected by the court below, and, therefore, the checks when offered and ruled out were without any evidence whatever to properly connect them with this case. Judgment below affirmed.