Woodbury v. Woodbury's Estate

The opinion of the court was delivered by Barrett, J. Nothing but the printed exceptions, lease, contract of settlement, and plaintiff’s building account, is furnished to this court. The declaration, pleadings, and specifications of [156] the parties, are not before us. The bill of exceptions is meager to the last extreme in material for enabling this court to comprehend and appreciate the points of exception. From what is before us, helped by the briefs of counsel, we infer that the claim of the plaintiff constituting “ the contract and cause of action ” in his behalf “ in issue and on trial,” is the building account printed with the exceptions. To that contract and cause of action the deceased, James M. Woodbury, was the other party. The statute is explicit in such case in excluding the plaintiff from testifying as a witness, except, under the proviso of s. 24, c. 36, Gen. Sts., “ in actions of book account, and when the matter in issue and on trial is proper matter of book account, the party living may be a witness in his own favor, so far as to prove in whose handwriting his charges are, and when made, and no further.” The plaintiff’s objectionable testimony was not for such purpose, but to show what was called the farm account on his book, and to testify that it was in his handwriting, and copied from a smaller book. This was not within that proviso, and so was not proper to be received. Even if the farm account had been “ the contract and cause of action in issue and on trial,” the testimony would not have been admissible, because it was not such as is alone made admissible by that proviso. The testimony allowed by that proviso is for proving and authenticating an original book of accounts, for the purpose of making such book an instrument of evidence. A copy of such book of account is not capable of being made such instrument of evidence. See this case, 48 Vt. 94. The testimony given by plaintiff that “ not all of the land in the Conant deed,” &c., was improperly admitted, he being excluded by the statute from being a witness for such a purpose. This does not fall within Morse v. Low, 44 Vt. 561, and prior cases to the same effect. If the exceptions show all that bore upon the pertinency of the testimony given by Gray and Collier, we should say that it could serve no legitimate purpose, and so should have been excluded on objection. As the case is to be retried, this suggestion is sufficient to enable the matter to be properly considered and ti'oated on the retrial. [157] No point is made by the excepting party as to the conclusiveness of the “ contract of settlement,” as it is called. So we do not follow the lead of counsel for plaintiff on that subject, in considering or debating it. Judgment x’eversed, and cause remanded.