Foster v. Estate of King

Stafford, J. The plaintiff seeks to* recover upon a promissory note for $300 signed by the intestate, King, payable to Mrs. Tilson or order, and by her indorsed to the plaintiff. The action is assumpsit; pleas, the general issue, payment and accord and satisfaction with notice that the signature would be denied. By special verdicts the jury found that the intestate signed the note, and that the plaintiff bought it of Mrs. Tilson before it was disallowed by the commissioners upon the decedent’s estate. They also found that although the note entered into the transaction of the purchase of certain property called the Paine place, it was not understood between the parties that it should be satisfied and discharged thereby. No general verdict was rendered, but upon these special verdicts a pro forma judgment was rendered for the defendant; and the first question concerns the correctness of this judgment. It seems to us that upon the special verdicts the judgment ought to have been for the plaintiff. King purchased the Paine place for $600 taking the deed in his own name. One-half the sum was furnished by Mrs. Tilson, and the plaintiff’s evidence tended to show that the note was given therefor. [280] This may be all that the jury meant in finding that the note entered into the transaction. The defendant’s evidence tended to show that by virtue of her furnishing one-half the price, Mrs. Tilson became half-owner of the place; and it now claims that the finding of the jury that the note entered into the transaction is a finding that such was the fact; that the note was given merely as a safeguard to the trust — King holding the title for himself and Mrs. Tilson equally — so that when King, as he did later, deeded the place to Mrs. Tilson the note was, in law, paid, whether the parties understood it so or not. But in view of the express finding of the jury that the note was not understood to have been paid or satisfied, and in view of the fact that the note may have been given for the loan of the $300, we are unable to see how the defense is made out. But the defendant contends, if this is so, that the verdicts cannot stand, for errors in the admission of evidence' upon which they may have been based, and especially for error in allowing Mrs. Tilson to testify. She was admitted as a competent witness and “gave testimony in the plaintiff’s behalf material to the issue in the case both as to matters transpiring before and since the death of King and before and since the appointment of the administratrix,” among other things to facts bearing on the question whether the note had been paid and satisfied. The contract or cause of action in issue and on trial was the note, and one main question was whether the note had been extinguished while it was owned by Mrs. Tilson. She was one party to the contract and King the other. King having deceased, she was incompetent as a witness by virtue of V. S. 1237. Insurance Co. v. Wells, 53 Vt. 14. Reversed and remanded.