Gustafson v. Eger

Hooker, O. J. The defendant and her mother were tenants in common of a stock of jewelry. The defendant purchased her mother’s interest, giving four notes in payment. Three of the notes were paid, and this action was brought' upon the last to fall due. No controversy arises over the giving of the note. The defense made is by way of payment and set-off. After purchasing the property, the defendant conducted a jewelry business; her husband being manager and agent for her in the conduct of the business. Upon the trial he was permitted to testify that he sold to the mother articles of jewelry from the store. This testimony was objected to upon the ground that he was disqualified as a witness, for the reason that the mother was dead, under the statute (3 Comp. Laws, § 10212, as amended by Act No. 239 of the Public Acts of 1901), which provides: ‘ ‘ When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased [389] person; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased partner, and not within the knowledge of any one of the surviving partners. No person who shall have acted as an agent in the making or continuing of- a contract with any person who may have died shall be a competent witness, in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives. And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters 'which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation ; nor, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation (or its assigns), shall any person who is or has been an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person: Provided, that whenever the words ‘the opposite party’ occur in this section it shall be deemed to include the assignors or assignees of the claim, or any part thereof, in controversy. And provided further, that whenever the deposition, affidavit, or testimony of such deceased party, taken in his lifetime, shall be read in evidence in such suit or proceeding, that the affidavit or testimony of the surviving party shall be admitted in his own behalf on all matters mentioned or covered in such deposition, affidavit, or testimony.” It is urged on behalf of the defendant that this testimony is not within the prohibition of the statute, because the husband had nothing to do with the original purchase by his wife of the jewelry. That contract was executed when the notes were given. It is now proposed to defend against the notes by showing a set-off. Every set-off involves a [390] contract. In this case a contract was made between the parties to this suit whenever the mother purchased any article of jewelry which is now made the subject of set-off. She purchased them through the husband and agent of the defendant. These are as much contracts, within the terms of the statute, as any other contract. The husband was also allowed to testify that at some time he heard the mother state that she intended to purchase “quite a good deal of goods out of the store,-and that the goods so purchased should apply upon this last note.” It may be that it is inferable from the testimony that this was said at the time the original contract was made, but we do not discover that this should make any difference. In the first place, it is doubtful if it can be called a part of the original contract,, for the reason that there is nothing definite or certain about it. It created no obligation that could be enforced. The mother was at liberty to purchase jewelry, or not, as she chose; and, had she refused to do so, no action for breach of contract could have been maintained. The effect is not different if it be said that the jewelry purchased under the arrangement is not to be treated as a set-off, but payment, for the reason that such payment involved a contract of purchase, and an agreement, either previous or subsequent, that the price should apply as a payment. The judgment should be reversed, and a new trial ordered. Carpenter and Montgomery, JJ., concurred with Hooker, C. J.