Foster v. Hart

Conger, J. This is a replevin suit for a wagon worth about §200. The wagon was owned by McBean & Foster, a firm conducting a bus line and transportation business in Bloomington, Illinois, until March 30, 1887, when McBean died, leaving Foster, his surviving partner, and Mary J. McBean, his executrix, to settle his estate. On June 1, 1887,'the said surviving partner and executrix sold the undivided partnership interest of Isaac McBean, deceased, in the bus line and transportation business, including the wagon in controversy, to appellant, John Eddy, who formed a partnership with the surviving partner, D. T. Foster, to continue the bus line and transportation business. On June 11, 1887, appellee, Hart, replevied said wagon from Foster & Eddy, claiming he had bought the wagon of Isaac McBean some two weeks before McBean’s death. Appellee, Hart, against the objection of appellants, was permitted to testify as to this transaction with McBean, including the statements of McBean in reference thereto. The only question we deem it necessary to notice is, whether Hart was a competent witness by whom to prove the statements and admissions of McBean. Section 4 of Chapter 51, R. S., provides: 56 In any action, suit or proceeding by or against any surviving partner or partners, * * * no adverse party, or person adversely interested in the event thereof, shall by virtue of section 1 of this act be rendered a competent witness to testify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation.” * * * Had Hart sought to recover the wagon in question from Foster, the surviving partner, before the interest in such property had been sold to Eddy, it is quite clear McBean’s conversations and admissions could not have been proven by Hart, when made, as in this case, in the absence of Foster. And we perceive no good 2'eason why the same role would not be applied under the circumstances existing in the case at bar. The intention of this limitation was to secure mutuality of right in testifying, and that one party to the suit should not testify in a case when the party with whom the contract was made, or the ti'ansaction was had, was dead, or from any cause incapacitated from testifying. Whitmer v. Rucker, 71 Ill. 410. The section under consideratio2i should be construed so as to effectuate the object and intention of the Legislature, and that was, when a pai'ty to a contract is dead, those who succeed to his rights in the subject-matter of the cont2'act, whether as executors, heirs, surviving partners or purchasers, shall be protected from the statements and conversations of the deceased, made in their absence, when sought to be shown by the testimony of the adverse party. Were it otherwise, the moment the interest in property of a deceased partner should be sold, a party claiming such property, whose mouth up to that time ■ would be closed by the law, could claim it as against the purchaser and maintain his claim by testifying to the conversations of the deceased; thus practically destroying the beneficial effects of the statute. If the property of a deceased partner can only be protected against the testimony of an adverse party up to the time it is unsold, and the moment it passes into the hands of a pur. chaser it is no longer under such protection, the right of the surviving partner to sell the interest of his deceased partner would be of little value. We hold in this case that the testimony received was not competent, first, because it was substantially a suit against Foster as surviving partner, and secondly, because Foster and Eddy, as the purchasers of the deceased’s interest in the property. had a right to invoke the aid of the statute, the same as Foster could had he been sued alone as surviving partne2\ The judgment of the Circuit Coui-t will be reversed and the cause remanded. Reversed and remanded.