Cowles v. Cowles' Estate

Tyler, J. This is an appeal by the administrator of Josiah Cowles’ estate from the allowance by the commissioners thereon of a claim in favor of the plaintiff. Assumpsit in the common counts; pleas, the general issue and Statute of Limitations. 1. At the trial in the county court the plaintiff offered himself as a witness to prove the items in his specification. He did not claim that he was a competent witness under any exception [502] to P. S. 1590, but he did claim that the defendant had waived the provisions of the statute by calling him as a witness at the hearing before the commissioners. The defendant objected to his testifying upon the ground that he was barred by the statute, and he testified under the defendant’s exception. It was competent for the administrator to waive the statute and permit the plaintiff to testify. Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805. In Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042, the oratrix called the defendant as a witness and proved by him the making of the contract in controversy with a party who had deceased; held that she thereby waived her right to object to him for incompetency when he was subsequently called by the other side. See Linsley v. Lovely, 26 Vt. 123. If there was a waiver and the plaintiff became a competent witness it was by reason of the following facts that the evidence tended to show: The firm of Davis & Russell, attorneys, had been employed by two of the four heirs to the estate to appear at the hearing before the commissioners. Russell appeared in that capacity, but was not employed by the administrator. The plaintiff having stated his claim and the arrangement and understanding that existed between him and the intestate, Russell requested that he be sworn, which was done, when Russell examined him generally as to the nature and extent of his claim and as to the understanding and arrangement claimed by him to have existed. It appeared that the' administrator was present when the plaintiff was sworn and heard him testify; that he made no objection; that the plaintiff’s testimony was generally about his account; that the administrator made no inquiries and directed none to be made of the plaintiff with reference to his claim; that he did not employ Russell until after the hearing and then about taking an appeal; that the appeal was taken at the instance of the two heirs whom Russell represented. The court found that the plaintiff was used as a witness before the commissioners at the request of the defendant and held that the statutory bar to his testifying was waived and that he was therefore competent to testify as a witness in his own favor. Mr. Russell represented the interests of two of the four heirs. The administrator represented the interest of all the heirs, therefore to an extent the attorney and the administrator [503] represented the same interests. They were alike interested to resist the plaintiff’s claim, for, if it were allowed, the distributive shares of the heirs would be diminished. The apparent purpose of Russell’s examination of the plaintiff was to gain information concerning his claim so that the estate might be prepared to defend against it. In this the administrator and Russell had a common interest. By the common law rule' a married woman was incompetent to testify for or against her husband in a civil action, but it is laid down in Wig. on Ev. Sec. 2242 (3) that a failure to object upon the calling of the wife to the stand is equivalent to consent. In Benson v. Morgan, 50 Mich. 77, 14 N. W. 705, a married woman had sued a firm in which her husband was concerned and called him as a witness in her favor; held, that consent was implied from the defendant’s presence in court and failure to object. As was said by the Court in Ainstvorth v. Stone, supra: “The statute is for the benefit of the representatives of the deceased party, and only prohibits a party from being a witness in his own behalf when the other party to the contract or cause of action in issue and on trial is dead. It does not prohibit the representative of the deceased party from waiving the statute and calling the other party to the contract to testify in his favor.” There was no error in the finding that the administrator consented to the plaintiff’s testifying before the commissioners, for there was evidence tending to support it. 2. The waiver of the incompetency of the plaintiff as a witness in proceedings before the commissioners bound the defendant in the hearing on appeal. Green v. Crapo, 181 Mass. 55, 62 N. E. 956, is authority on this point. There the plaintiff testified without objection in the probate court to a privileged communication between himself and the defendant. In the trial in the Superior Court objection was raised to the plaintiff’s testifying in his own behalf, but the court ruled that the objection had been waived and the testimony was admitted. The Supreme Court sustained the ruling, saying in the opinion: “The privacy for the sake of which the privilege Was created was gone by the appellant’s own consent.” * * * 3. There was evidence tending to show that the plaintiff returned to the home farm to carry it on and take care of his [504] father, the intestate, upon a mutual understanding between them that the plaintiff was to be paid for his services; therefore, the defendant’s motion for a verdict was properly overruled. Robinson v. Larabee, 58 Vt. 652, 5 Atl. 512. 4. The plaintiff introduced his wife as a witness and she testified that certain things were furnished by the intestate towards his board, which the plaintiff claimed were included in the transactions between himself and the intestate and which he claimed should go into the adjustment of the accounts between them. The witness testified that in the six years prior to the death of the intestate he turned in one pig, half a beef, and tea and coffee towards his support. She was not inquired of in her direct examination whether these items were made the subject of a book account, nor whether any account or memoranda of the several items and transactions were kept by the parties. On cross-examination the defendant inquired of her whether she had ever seen any book upon which these items were charged or credited. The question was objected to by the plaintiff and excluded by the court upon the defendant’s refusal to inform the court of the purpose of the inquiry. The plaintiff claimed that there were mutual transactions between himself and the intestate. In his specification, which is referred to in the exceptions, he states an annual account and credits the intestate each year with potatoes, pork, beef, tea, and coffee to the amount of $24.50, aggregating in the six years— 1901 to 1906, inclusive — $195.56 which he deducts from the amount of his annual charges for the same time for boarding the intestate, keeping and use of his horse and work performed,— $1,512.49. The answer given by the plaintiff’s wife in her direct examination related to the items claimed by the plaintiff to have been furnished by the intestate and tended to establish the plaintiff’s claim of mutual transactions. The question asked her by the defendant’s counsel and excluded was in the line of proper cross-examination for the purpose of ascertaining the source and extent of her knowledge of the matter about which she had before testified. For the error in denying the right ■ to cross-examine the judgment must be reversed and cause remanded.