Laack v. Runge

WiNslow, J. The only question presented by the record is as to the admissibility of the testimony of the witness Eadloff. The plaintiff in error claims that under secs. 4069, 4070, Stats. 1898, Eadloff could not testify as to any transactions had by him personally with the plaintiff’s testator. It is difficult to see upon what basis this contention rests. The sections named simply forbid the examination of a pamty to the action, or any person through or under whom a party derives his interest or title, as tq transactions or communications had by him personally with a deceased or insane person through whom the opposite party claims or defends. Unless the witness is a party to the action, or is in fact the real party in interest (Wright v. Jackson, 59 Wis. 577), or unless he is a person through or under whom the party offering his testimony derives his interest or title, his testimony is not barred by the statute. Eadloff is not a party to the action, nor does he stand in the relation of a real party in interest who will be bound by the judgment, nor does the defendant derive any interest or title through him; hence his testimony was admissible. If Eadloff be considered as the agent of defendant in making the payment, his testimony would still be admissible. Hanf v. N. W. M. A. Asso. 76 Wis. 450. . By the Oov/rt.— Judgment affirmed.