Biggs v. McCurley
| Decision Date | 02 December 1892 |
| Citation | 25 A. 466,76 Md. 409 |
| Parties | BIGGS v. MCCURLEY. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Action for a breach of contract by Richard J. Biggs against Wallace McCurley, administrator of Felix McCurley, deceased. Defendant had judgment, and plaintiff brings exceptions. Reversed.
Argued before ALVEY, C.J., and ROBINSON, BRYAN, McSHERRY, FOWLER and ROBERTS, JJ.
Wm. S. Bryan, Jr., and Henry O. Thompson for appellant.
E H. Gans and B. H. Haman, for appellee
The plaintiff leased of the defendant's intestate the dwelling house and premises No. 215 Old Frederick road, for which he was to pay a rental of $225 a year. The property being in bad condition, the lessor agreed to make the following repairs: First, he was to inclose the premises with new fencing, was to run a neat picket fence from the roadway to Casey's fence, and to paint the dwelling house, and to make any other repairs which might be necessary. The lessor having failed in his lifetime, and the defendant, his administrator, having refused, to make the repairs and improvement thus agreed upon, this suit was brought by the lessee to recover damages for a breach of the lease. The plaintiff, having proved that he had over and over again requested the defendant to make the repairs and improvements as thus stipulated in the lease, and had complained of the annoyance and discomfort which he himself and his family had suffered by reason of the failure to make such repairs, then offered himself as a witness to testify in regard to transactions which had occurred since the death of the lessor. And the first question is whether the plaintiff was, upon this offer, a competent witness; and this depends upon the construction of section 2, art. 35, of the Code. After removing the disqualification of witnesses to testify on the ground of interest and being parties themselves to the suit, the statute carefully guards the exercise of the right to testify by certain well-defined limitations; and section 2 accordingly provides that "when an original party to a contract or cause of action is dead, or shown to be a lunatic or insane, or when an executor or administrator is a party to the suit or action or other proceeding, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his coplaintiff or codefendant, otherwise than now by law allowed, unless a nominal party, merely." The object of this limitation is so apparent, and the language of the statute so plain and explicit, there ought not to be, it seems to us, any difficulty as to its construction. Where the parties to the contract or cause of action are living and sane, it is fair to presume that each has an equal knowledge in regard to the subject-matter in controversy; and this being so the parties themselves are made competent witnesses. But, where one of the parties has died or become insane, it would be unfair and unjust to permit the other party to testify in his own behalf. The object of this limitation upon the privilege to testify was to put the parties to the contract or cause of action upon an equal footing. The test of competency is the contract or cause of action in issue and on trial, and not the facts in regard to which the party is called to testify, even though such facts may have occurred after the death of one of the parties to the contract. And if it be conceded that the lease in this case is the contract or cause of action in issue, then, the lessor being dead, the lessee himself, it is clear, is not a competent witness. And, to escape this conclusion, it was argued that the breach, and not the lease itself, was the cause of action, within the meaning of the statute, and as the breach occurred after the death of the lessor the plaintiff was a competent witness. Now, it may be true that in order to maintain the action the plaintiff was bound to prove a breach of the lease by the lessor, but it is equally true that there could not be a breach or cause of action unless there had been a contract between the parties; and, though the cause of action may be said to embrace the lease and the breach, yet the lease, after all, is the contract on which the action is based. And, this being so, it is the contract, within the meaning of the statute, and the lessor, one of the parties to this contract, being dead, the lessee, the other party, is not, it is clear, a competent witness. So there is no error in the ruling of the court in this exception. Robertson v. Mowell, 66 Md. 533, 8 A. 273; Wright v. Gilbert, 51 Md. 157; Sangston v. Hack, 52 Md. 201; Orendorff v. Utz, 48 Md. 304; Dilley v. Love, 61 Md. 607.
The plaintiff then proved that the house and premises were generally speaking, in a bad and dilapidated condition. The house itself needed painting, both inside and out. The plastering was off in many places, especially around the windows and fireplaces. The fencing between the yard and the lot, in the rear, and between the yard and barnyard, was in a...
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