Wyman v. Wilcox's Estate

TYLER, J. It appears by the referee’s report that the plamtiff, J. R. Wyman, offered himself as a witness, produced exhibit No. 1 as his book account, and testified that it was in the handwriting of his attorney, who drew it up after the decease of Wilcox and after the appointment of the administrator and commissioners upon his estate. The plaintiff then offered the writing as a book of original entries, and proposed to testify that the plaintiffs had no other book, and that the entries upon the paper were made from their recollection. If the paper and offered evidence were admissible they were made so by section 1004, R. L., which is as follows : “In actions ofbook 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 ruling of the referee deprived the plaintiffs of no legal right. The witness could not have testified further without exceeding the statutory limits. If he might testify as proposed it was not by virtue of the section of the statute above referred to. Section 1002 is a direct inhibition upon the witness testifying. It provides that when one of the original parties to the contract or cause of action in issue and on trial is [31] dead, * * '* * the other party shall not be admitted to testify in his own favor. It was said by Vesey, J. in Barnes v. Dow, 59 Vt. 530, that it was the intention of the statute, after the disqualification of interest was removed, to preserve equality in evidence between parties to contracts, so that when controversies arose over them in court the representatives of a deceased party would stand on the same footing with the survivor. The writing was properly excluded. As was said by Peck, J., in Lapham v. Kelley, 35 Vt. 195 : “It was not such a book, kept in the regular course of business, as to be admissible as evidence per sc, independent of the testimony of the party tending to prove the correctness of the entries-of the transaction in dispute.” It was a memorandum made by himself of a fact about which he was precluded by the statute from testifying. Parris v. Bellows’ Est., 52 Vt. 351. The defendant’s counsel claimsthatthe partnership matters could not be adjusted in this form of action. The finding of the referee did not involve a settlement and statement of the partnership accounts. He finds that each partner paid his proportionate share of the expenses, but that he was unable to find the quantity or value of lumber sold or the amount received by each partner from sales; that the intestate received and had the avails of a certain $400 note given to the firm for lumber, and that there were other sales, but that the evidence did not disclose the manner in which the proceeds were divided. The referee finds from the admissions of the intestate to third persons that he in fact owed the plaintiffs $400, and that the item of $10 for labor performed by the intestate for the plaintiffs, shortly before his death, was performed under an agreement with them that the amount should apply on what he owed them. Whether the admitted indebtedness arose from the $400 [32] note, or from the $200 which the plaintiffs loanej Wilcox in the year 1865 and which he had not paid, or partly from both items, does not appear. The referee found that business relations had existed between the parties, and that the intestate had admitted that he owed the plaintiffs $400. He did not find and it was not necessary to be found from what transaction the indebtedness arose. It was found upon competent testimony that a short time before the death of the intestate he was indebted to the plaintiffs in the sum of$400. 'From this sum, upon the facts reported, the credit item of ■$10 should be deducted. The referee finds no fact from the testimony of John Wyman from which an inference of law can be drawn, and that testimony is immaterial. Judgment reversed and judgment for jlaintiffs for $390 and interest.