McRae v. Holcomb

Wm. W. Smith, J. This appeal is from a judgment in favor of Holcomb against McRae as administrator of John Crassland. The action was upon a promissory note, made by the deceased and alleged to have been lost or mislaid. Upon the trial one Powers, not a party to the action, was introduced as a witness for the plaintiff, and was permitted against.the objection of the defendant, to give evidence of sundry transactions and conversations had with Crassland, touching the matter in controversy. The ground of the objection was that Crassland was dead, and that the witness was interested in the issue to be tried. The ruling of the court in the admission of the testimony, is the only error complained of.- Powers swore in substance, that he was the agent of Holcomb, who lived in Texas, and that, as such agent, he had sold to Crassland a tract of land in Nevada county for $560, — that Crassland received the customary bond for title, paid one fourth of the purchase money in cash and for the residue, made his three notes payable to Holcomb, and was due respectively at six, twelve and eighteen months; that witness returned the‘notes for collection, and about the date of the maturity of the first note, Crassland called to pay it; that witness took the notes from his safe, the three being pinued together, computed the interest to date, indorsed the amount thereof $6.50 on the first note, as he thought, received $146.50, and surrendered the note; that about the time the second note matured, Crassland directed him to procure a deed from his principal, as he wished to pay off the whole debt, and when the deed arrived, he was informed by McRae, then Grassland’s attorney, and now his administrator,, that the title-bond and balance due on ,the land had been left with him; that the witness could find but one note, the third, which was surrendered to McRae on payment of the principal and interest $158 50, and the deed was delivered; that witness transmitted the money to his principa,!, who immediately wrote back that anpther payment was still due; that witness, at once informed McRae that there was a mistake, one note being still unpaid, and requested him not to give up [576] the deed to Crassland until the mysterious disappearance of the second note could be looked into; that witness soon after saw Crassland and demanded the unpaid installment, and Crassland replied, “produce the note and I will pay it”; that witness did not know that the note was in Grassland’s possession until his death, and witness was unable say how it came into his hands, but supposes that when Crassland paid the first note he surrendered the first and second also; that Crassland had never paid but-three installments, nor had witness intended to. part with the second note, and that witness considered himself morally and legally bound to make good the loss to his principal, if the present action should go against him. The second note was produced in court, having been found among the papers of the intestate, and has upon the back of it, in Power’s handwriting the indorsement, “Interest $6.50”, which he evidently intended to place on the first note. McRae was the only-other witness that was examined, and he corroborated the statements of Powers, so far as his own connection with the transaction extended, but went on to say that when he reported to his client what Powers had said about the mistake and that one payment was still due, Crassland claimed to have paid the note. Section 2 in the schedule to Constitution of 1874, is as follows: “In civil actions no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried; Provided, that in actions by or against executors, administrators or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to anyr transactions with, or statements of .the testator, intestate or ward, unless called to testify thereto by the opposite party.” It is admitted that the exclusion of Powers is not demanded by the words of this provision, but it is contended that so much of his testimony as relates to conversations and transactions between himself and the deceased, is incompetent if the provision is to be interpreted according to its spirit and reason. This question is virtually settled by Bird vs. Jones, 37 Ark. 195, and Nolen vs. Harden, 43 Ark. 307, where it was decided that the persons excluded from testifying as to transactions or statements of testators, intestates( and wards, are the executors, administrators and guardians on one hand, and their antagonists in the suit on the other, and that-persons who are neither pursuing nor pursued by, the fiduciaries sS’te nbt included in the prohibition. The object was to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. To use the lauguage of Dr. Wharton in his law' of evidence in*civil issues, §466, when one of the parties to a litigated obligation is silenced by death, the other is silenced by law. The Constitution establishes a general rule that makes all persons who are of sufficient intelligence and [577] not otherwise disqualified, competent witnesses, irrespective of their participation in the suit, or their, interest in the result. But to this general rule, there is one exception, viz: where the action is by or against an executor, administrator, etc., and the witness is a party to the record, he shall not speak of personal transactions with the deceased, where, by the nature of the case, the privilege of testifying cannot be reciprocal, but mere interest in. the issue to be tried does not disqualify. The office of a proviso is to restrain or modify the enacting clause of a statute. Hence “the general rule of law, which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause, which does not fall fairly within its terms. Ip short, a proviso carves special exceptions only out of the enacting clause, and those who set up any such exceptions, must establish it as being within the words, as well as within the reason thereof.” U. S V. Dickson, 15 Peters 165. per Story J. Our Constitutional provision is identical in purport,and very nearly in language with section 858 of the revised statutes of the United States. In Patten vs. National Bank, 102, U. S. 163. — such evidence as Powers delivered in this case was declared admissible. It is there said : “The first clause of that section shows that there was in the. mind of congress two classes of witnesses. Those who were parties to the issue, that is, parties to the record, and those interested in the issue to be tried, that is, those who, although not parties to the record, held such relations to the issue, that would lose or gain by the direct legal operations and effect of the judgment. . . . The proviso . . . excludes only one of the classes described in its first clause. Those who are technically parties to the issue to be tried, and we are not at liberty to suppose that congress intended the word “party”, as used in that proviso, to include both those who, according to the established rules of pleading and evidence, are parties to the issue, and those who not being parties, have an interest in the result of that issue.” The same conclusion has been reached by other courts, in construing similar statutes. Looken vs. Davis, 47 Mo. 140; Willingham vs. Smith, 48 Ga. 580; Bragg vs. Clark, 50 Ala. 363; Bland vs. Fairbanks, 50 Cal. 42. Judgment affirmed.