Farmers' Mutual Fire Insurance v. Wells

The opinion of the court was delivered by Barrett, J. The cause of action in this case is the contract evidenced by the note, made by the defendant to the deceased payee ; and the matter in issue, that is, in dispute, is the alleged payment, claimed by the defendant, to the deceased payee in his lifetime. Hence, the defendant and the deceased payee were the only parties to the transactions involved in this suit, and in issue on the trial of it before the jury. It therefore falls, in terms, within the proviso of s. 24, c. 36, Gen. Sts., as emphatically as did the matter in question in 38 Vt. 509. The case of Hollister, Adm'r. v. Young, 41 Vt. 156, is conclusive, that the assignee of a contract or cause of action, made or existing between the defendant and the decased party, is entitled to stand upon that proviso of the statute against the testimony of [16] the surviving defendant, even though the estate, or heirs of the deceased, had no interest in the subject-matter of the suit. The distinctions between the contract, or cause of action in issue and on trial, and matter of contract and transactions, that are collateral or incidental to such contract or cause of action, are well marked in Cole v. Shurtleff & Trs. 41 Vt. 311; Downs v. Belden, 46 Vt. 674; Bank v. Schofield, 39 Vt. 590; Morse v. Low, 44 Vt. 561. In none of the subsequent cases has there been any question of the soundness of what was held in Hollister v. Young, supra. In the cases in which the fact that the estate of the deceased had no interest in the suit or the subject-matter of it, as bearing on the admissibility of the survivor to testify, it has been true, that the contract or transaction to which the deceased was a party, was not the cause of action in issue and on trial. This is so in the case of Taylor v. Finley, 48 Vt. 78. The note for $50, with the condition of security on the cow in question, was not the contract or cause of action in issue ; nor was the question of such payment, as constituting the ground of the rights and liabilities of the respective parties. It was not claimed that at the time the defendant took the cow, the plaintiff had paid all that he must have paid, in order to absolve the cow from the defendant’s title by way of lien. The point was, that, though the plaintiff had neither paid nor tendered all that he was bound to pay, in order to give him clear title as against the defendant, still the defendant could not rightfully, as against the plaintiff, take the cow from the plaintiff in the manner he did, and hold her as his own, acquit of any right of plaintiff to redeem by paying the unpaid balance, for which the lien existed. That question of payment, to which plaintiff was admitted to testify, was regarded as incidental and collateral, to the cause of action in issue and on trial. It always seemed to me that the decision and opinion in that case were on the extreme limit of distinction, between admissibility and non-admissibility under the statute. Yet it does not at all, in the actual elements on which that case rests, infringe on the case of Hollister v. Young, supra. The result is, judgment reversed, and judgment rendered for the largest sum.