Cutler v. Successson of Collins

The opinion of the Court was delivered by Bermudez, C. J. This suit is brought to recover $2026 25, from a succession, as a balance due on accounts running from January 22, 1879, to June 12, 1883, as per exhibits attached to the petition. The defenses are tlie general issue and the plea of prescription. From an adverse judgment, the succession representative appeals. The evidence on which the lower court based the judgment consists of the testimony of the plaintiff adduced to show the labor performed, the money advanced, the paper discounted and the numerous items of the several accounts. The defendant has sought, by different ways, to impeach this testimony. The defense specially insists that the evidence is insufficient and that more than $940 of the claim is barred by prescription. It is urged that Article 2277, R. C. C., requires that a claim exceeding $500 be proved by two witnesses, or at least by one credible witness and corroborating in circumstances. This article was article 2257 of the Code of 1825. The witnesses were to be disinterested and qualified witnesses. The Act of 1868, now article 2281 of the R. C., which has allowed the testimony of interested parties and of persons closely related to them, requires a more stringent application of the exigencies of the law, touching the sufficiency of the evidence adduced by such parties, where the claim is sought to be established by the testimony of the plaintiff himself and against a succession. It is true that precedents are to the effect that the article just mentioned does not apply to accounts the aggregate items of which exceed [96] $500, when each separate Hem thereon is less than that sunn. 19 Ann. 71; 23 Ann. 785; 28 Ann.144. But it by no moans follows that the testimony of a plaintiff against a succession, in a case like the present one, in which more than $2000 is claimed, corroborated only by extracts which he says were made from his books, which were not made evidence at all, not even by himself, must be deemed sufficient to justify a judgment in his favor. It is in itself weak in nature and such as might be considered and weighed with great caution. The legislature of 1868 only makes parties interested competent witnesses in their own behalf, leaving the appreciation of their testimony in point of sufficiency and credibility, to the court whose action is asked. This is a suit by an employee against liis deceased employer, by one in the habit of borrowing money from his alleged debtor, who is shown to have been a man of means, an agent representing large interests, a man fair, honest, prompt, systematic and correct in his business transactions; by one who had that employer’s confidence, who, during his last illness, had the key of Ms office and, therefore, access to the contents and who, since the death, has stated different amounts, from $200 and upwards, to be due him by the deceased. The evidence shows that the plaintiff once stated, during the lifetime of Collins, that the latter was considerably indebted unto Mm, but that when this statement was communicated to the latter, he expressed' astonishment and surprise. It shows also that Cutler stated the amount to bo two thousand dollars, but this statement is not shown to have been made in presence of Collins. It is nothing, but the recurring of plaintiff’s own testimony. Those circumstances, though not sufficient to outweigh the testimony of plaintiff, so as to warrant a judgment in favor of the succession, are surely not corroborating circumstances. .They are such as will justify a court of justice in abstaining from recognizing and enforcing his claim. Tt is not because a plaintiff swears affirmatively to the existence of a debt in his favor that the court is bound to take his testimony as conclusive. Surrounding circumstances and the absence of corroborating proof, may weaken it, (particularly in a suit against a dead man), so as to render it insufficient for a foundation for a judgment of recovery. See Manning’s unreported cases, p. 98. The Code itself provides that the circumstance of a witness being a party to the cause, though not a sufficient cause to consider him as in [97] competent, may, according to circumstances, diminish tlie extent of his credibility. R. C. C., 2282. The testimony in this case being that of the plaintiff, against a dead man, is of the weakest kind and is not entitled to sufficient weight to warrant a judgment for the plaintiff. To prevail, it should have been strengthened by strong, or at least reasonable, additional independent proof. The reason for which the law attaches little weight to such testimony is, not only the interest of the party in the cause, but also that his statement cannot be contradicted by the dead man, or the witness convicted of perjury on the evidence of the deceased. It was thus viewed in cases in which the lawrequired one credible witness and corroborating proof, in cases in which more than $500 was claimed, but there is no reason why it should not be likewise viewed since the change in the legislation. 7 R. 112; 6 Ann. 763; 8 Ann. 278-9; 9 Ann. 495; 10 Ann. 279; 16 Ann. 168; 14 Ann. 275; 19 Ann. 495, etc.; Manning’s unreported cases, 98. The defense of prescription appears to be without merit, but cannot be passed upon. 2 Ann. 780; 14 Ann 700. It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that there be judgment against plaintiff as in ease of non-suit, at his cost in both courts. Fenner J. dissents. Rehearing refused.