Clements v. Marston

Sargent, J. At common law, a party to a cause could not testify, on the ground that he was interested. Any person not a party, if interested in the result' of the suit, was excluded as a witness on the ground of interest. Wives were excluded, — 1st, on the ground of interest, they being interested wherever their husbands were; and 2d, upon the ground of public policy, that it was not expedient to place husband and wife in a position that might lead to dissensions and strife between them, or that might encourage perjury. Hence, wives were not allowed to testify for or against their husbands when they were parties to civil proceedings, and, for the same reason, both were excluded when either was a party in a criminal case. The first inroad upon this system in this State was when the statute — 37 — empowered auditors to examine parties upon oath. This was construed as not including the wife of the party, for the reason that she was not ordinarily a party, and did not become a party because her husband was, though equally interested with him. And there is no doubt that this construction of the law was in accordance with the intention of the legislature, for this decision excluding the wife—Randlet v. Herren, 20 N. H. 538—was made in January, 1847; and no attempt to change the law in that regard was made until there had been a general overturning of the principles of the common law in relation to the competency of witnesses. Afterwards the statute provided that the debtor might be a competent witness in a trial between plaintiff and trustee. In that case, also, the debtor’s wife was excluded—Coburn v. Mellen, 19 N. H. 198, decided July, 1848 — and for the very sufficient reason that the terms of the statute making the exception to the common law rule, as in the case of auditors, were not broad enough to include her. So the law of 1857, ch. 1952, provided that no person should be excused or excluded as a witness by reason of interest as a party or otherwise. This was held not to include the wife of the party. Kelley v. Proctor, 41 N. H. 139; Breed v. Gove, 41 N. H. 452; Wheeler v. Towns, 43 N. H. 56; Smith v. Railroad, 44 N. H. 325. And how could this law have received a different construction with any propriety ? The disqualification of interest was alone removed by that statute. But that was not the only ground upon which the wife of a party had been excluded at common law. The other ground — that based on public policy — was untouched, and remained in its full force. It was also held that this law of 1857, and also the law of 1858, did not and was not intended to apply to criminal cases, for reasons which seemed sufficient to the bench and bar of the State, and also to the legislature, as they made no attempt for many years after that decision to modify the law in that respect. State v. Flanders, 38 N. H. 324; State v. Connell, 38 N. H. 81. But one step prepared the way for another, and each legislature went a step beyond its predecessor, until, in 1866, in chapter 4268 of the acts of that year, which is embraced in General Statutes, chapter 209, section 20, the disqualification of interest is not only removed, but it is provided that in certain classes of cases the husband and wife are made competent witnesses for or against each other. An additional section was added in 1867,—section 22, of the same chapter,— providing that “ the wife may testify for the husband, or the husband for the wife, in any case where it appears to the court that their examination as witnesses upon the points to which their testimony is offered would not lead to such violation of confidence” (meaning marital confidence). This section was amended by-chapter 20, laws of 1870, so that the wife may testify for or against her husband, or the husband for or against his wife, in every case where it appears to the court that their examination as witnesses would not lead to such violation of (marital) confidence. This amendment was made to apply to pending — 38 — suits, and to take effect from its passage. So there can be no question of its applying to the present case. In State v. Moulton, 48 N. H. 485, it was held that section 22, chapter 209, General Statutes, did not apply to criminal cases — following the cases of State v. Flanders and State v. Connell, 38 N. H. supra. But in the acts of 1869, chapter 23, respondents were allowed to testify; and by the act of 1871, chapter 38, the disqualification of infamy is removed, and the wife is made a competent witness in all criminal cases where the respondent is allowed to testify; and this act is applied to pending suits, and made to take effect from its passage. In criminal cases, then, it would seem that the wife is made a competent witness in all cases ; for it is not in those cases where the husband, being respondent, requests or elects to testify, that she is made competent, but in all cases where he is allowed to testify, — which, by the act of 1869, is in all cases ; and the wife being thus made a competent witness in all criminal cases, she may be called to testify for or against her husband in all cases where he is accused of crime. Thus it appears that the present policy of our legislation on this subject is to make the husband and wife competent witnesses for or against each other, just as though they were strangers, in no way connected, except in the single case where the court can see that such testimony would lead to a violation of marital confidence. Applying that principle, and there would seem to be no good reason why the wife should not have testified in the case before us. They are to be allowed or compelled to testify for and against each other in all cases, just like persons in no way related to each other, with this single exception; and this violation of marital confidence must be something confided by one to the other, simply and specially as husband or wife, and not what would be communicated to any other person under the same circumstances. In this case the wife acted as the husband’s agent, and kept his money, and knew how it was expended; but all the communications made to her were made to her as such agent, just as he would have made the same communications to any other agent doing the same business. There was no confidential communication between them as husband and wife, but simply the ordinary communications between a principal and agent, and the communications would be no more confidential than those between any other principal and agent; and what she heard of the conversation between her husband and the deceased was not of course confidential, because it was talk between third persons, and not any communication made to her. We see no reason to set aside this verdict on this ground. Allowing the wife to testify for or against her husband, in any case where a stranger would have been a competent witness, seems tit be the rule now ; and, in that view of the case, nothing should be excluded except something that is strictly confidential, and not only so, but communicated in strict marital confidence. Ryan v. Follansbee, 47 N. H. 100. We think the instructions, that, if such a contract as the defendant — 39 — claimed was made, the plaintiff could not recover, were well enough. The case of Crawford v. Parsons, 18 N. H. 293, is cited as opposed to this view, where it was held that when the plaintiff agreed to work for the defendant for eight months for a certain lot of land, this contract on the párt of the defendant was within the statute of frauds, and could not be enforced, and that therefore the plaintiff was not bound by his contract, and might leave, as he did, after two weeks’ work, and still recover what his services were worth, without waiting till the end of the eight months before he brought his action, and without being liable for any damages to the defendant for leaving before his time was out—according to the doctrine of Britton v. Turner, 6 N. H. 481. J3ut that authority does not apply here, because in this case the defendant was to give the plaintiff not only the farm, but also his personal property. So far as the personal property was concerned, the contract was not within the statute of frauds; and the fact that a part of the contract could not be enforced, so far as it related to the conveyance of real estate, did not vitiate the whole contract. If a part of the consideration is illegal, that may vitiate the whole contract; but where a part is void or voidable, as in this case, but not illegal, that does not taint the whole, or make void what would otherwise be valid. But we think the doctrine of this case, thus cited, is questionable, especially as it is in direct conflict with the doctrine of Lane v. Shackford, 5 N. H. 130, where it is held that such a contract to convey land, though not in writing, and though no action can be maintained upon it, is not wholly void, so that the party purchasing the land cannot recover back money paid for the land, or pay for services rendered in payment therefor, until the vendor of the land has refused or disabled himself to execute his part of the contract. This authority, which we understand to have been generally followed in this State, except in Crawford v. Parsons, would justify the ruling in this case on that point, even if the contract was to convey land only, — because, if the contract was as the defendant claimed, he could not properly be called on to perform it when the plaintiff left him; and his refusal to give a deed or other writings at that time would be no refusal to perform his contract. But, as the contract claimed by the defendant had reference to personal property as well as to real estate, the ruling on that point was right in either view of the law. But we think the other part of the instructions was erroneous. It would be necessaiy to know what the expectation of the defendant was, as well as of the plaintiff, in order to settle the questions that might arise. The instructions do not meet the case made by the plaintiff, either in his opening statement or by the proof, as the plaintiff claimed it to be. He claimed, in the opening, that it was agreed between the parties “ that the plaintiff should come on to the defendant’s farm and take care of the defendant as long as he lived, and have his pi’operty, consisting of a farm and personal property; and that it was the understanding,” — or, in other words, that they agreed, — “ that proper papers should be executed between them to carry this agreement into — 40 — effect; that the plaintiff accordingly went with his family and remained fifteen weeks, when, upon refusal by the deceased to make writings, he left.” After the evidence was put in, then the case shows that the “ plaintiff claimed that the evidence did not show any completed contract, but a verbal understanding” (or agreement), “ which was to be carried into effect by the execution of writings that would secure the plaintiff the property in question.” Here, then, the plaintiff claimed that there was a contract between them, not only that he should live with and take care of the defendant for life, and have, as the consideration for so doing, the defendant’s farm and property, — but there was also a further contract or agreement that this contract should be reduced to writing; that papers, in some form, should be executed between them, which should bind the parties legally to the fulfilment of that contract on each side. Now if this were the agreement, then the question should have been left to the jury as to whether the plaintiff waited a reasonable time for the defendant to perform the last part of the contract by putting the main contract in writing; and if so, then whether the defendant refused to thus perform it in such reasonable time. If there was such a major contract as the plaintiff alleged, and one which would not be binding unless reduced to writing, it certainly would be no more than reasonable, no more than would be expected among prudent and cautious men, that the other or minor agreement should also be made, that the major contract should be put in writing so as to show just what the contract was, and also to make it valid in law to bind the parties. And the law would not require the plaintiff to remain in uncertainty and to trust to an invalid contract longer than to give the defendant a reasonable time to make the writings which should obligate him to perform the major contract, or the first part of his agreement; and the law would not aid the defendant in compelling the plaintiff to work for him all his life under the major contract, which he would not be obliged- to perform, only in part at least, until he had performed the minor contract, or precedent condition, by putting the whole contract in writing, which would make it a legal and binding contract. If it had been left to the jury to find whether there was a contract, agreement, or understanding between these parties that the main contract was to be reduced to writing, and that the defendant unreasonably refused to perform that part of the contract upon request to do so, that then the plaintiff would be entitled to recover pay for what he had done, we think it would have been well enough. While the first part of the instructions was broad enough to cover the case as claimed by the defendant, the second part was not full enough to meet the case as claimed by the plaintiff. 'Under these instructions the plaintiff might have left at any time without requesting the defendant to do what the plaintiff claimed he had agreed to do, and yet have recovered, though the defendant might have been ready to make the writings according to agreement, if he had been requested so to do. — 41 — In such case the defendant might have been ready and willing to do all he agreed to do, and the case would stand as strong as the case of Lane v. Shackford, where it was held that the plaintiff could not recover back money paid on a contract for the sale of land till the defendant had refused or disabled himself to execute his part of the contract. When the defendant thus refuses to perform his part of the contract, then the plaintiff may recover back money he has paid towards the land; and here, when the defendant had refused to perform his part of the contract, the plaintiff might recover pay for his services, equivalent to their value in money. Ham v. Goodrich, 37 N. H. 185; Roundy v. Thatcher, 49 N. H. 526; Miller v. Tobie, 41 N. H. 84. Verdict set aside.