Lewis v. Oliver

Hall, J. The evidence was clearly sufficient to support the finding of the court. [207] II. The interpleader would not have been a competent witness in this case at common law, being a party to the record. Another party was the plaintiff, administrator of Lockhart. Section 4010, Revised Statutes, provides that “where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator * * * ” The interpleader was not competent to testify in this case unless he was within one of the exceptions made by the foregoing provisions of said statute.. Generally speaking he was incompetent under said statute. Was ■he within either of the said exceptions ? The contract in issue was a contract alleged to have been made by the interpleader with Lockhart. The issue in the case was whether the interpleader was entitled to an interest in the amount due from the defendant upon a certain contract. That interest rested and depended upon the contract between the interpleader and Lock-hart. Without such contract, confessedly, the inter-pleader had no such interest. The interpleader in his interplea based his interest upon an express agreement made by him with Lockhart, authorizing him to make a certain alleged contract with the defendant for the interest of the interpleader and Lockhart in equal parts; and his right to recover should be confined to the ■case thus made. But waiving that matter, so far as the question under consideration is concerned,' it matters not how the contract between the interpleader and Lock-hart was made. Even if such contract was made by Lockhart, ratifying an unauthorized contract theretofore made by the interpleader with the defendant, for the [208] benefit in equal parts of the interpleader and Lockhart, the contract thus made to share the profit was the contract in issue; and the interpleader was incompetent to testify in this case except as to the matters included in the second exception of the statute. But no testimony of the interpleader was offered concerning any such matters, and he was properly excluded as a witness. III. The inventories and appraisements of the administrator were properly excluded. They were not competent for any purpose in this case. The judgment is affirmed. All concur.