Frink v. Taylor, 5734.

• Decision Date: 06 January 1930
• Docket Number: No. 5734.,5734.
• Citation: 59 N.D. 47,228 N.W. 459
• Parties: FRINK v. TAYLOR.
• Court: North Dakota Supreme Court

59 N.D. 47

228 N.W. 459

FRINK

v.TAYLOR.

No. 5734.

Supreme Court of North Dakota.

Jan. 6, 1930.

Syllabus by the Court.

Under the provisions of subdivision 2 of section 7871, Comp. Laws 1913, providing “in civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party,” where the plaintiff called the defendant to testify to the receipt of a check from the decedent and whether it represented a loan, and whether it had been repaid-the claim of an unpaid loan being the subject of plaintiff's action-the plaintiff was calling the defendant to give testimony regarding a “transaction” with the decedent, and by so doing removed the bar of the statute as to that transaction in its entirety; thus permitting the defendant to testify as to the whole transaction irrespective of whether he had been interrogated regarding the other portions thereof.

The fact that the plaintiff called the defendant as a witness for cross-examination under the statute, section 7870, Comp. Laws 1913, is immaterial so far as further testimony by the defendant regarding the “transaction” is concerned.

The person prohibited from testifying under the provisions of subdivision 2 of section 7871, Comp. Laws 1913, is a party to the action, and does not exclude the wife or other relatives of the party, when they are not parties to the action.

Appeal from District Court, Benson County; C. W. Buttz, Judge.

Action by Orville A. Frink, as administrator of the estate of Clara T. Taylor, deceased, against Charlie A. Taylor. From an adverse judgment, plaintiff appeals. Affirmed.Charles G. Bangert, of Enderlin, and Clarence G. Mead, of Lisbon, for appellant.

Sinness & Duffy, of Devils Lake, for respondent.

BURR, J.

On this appeal there are fourteen specifications of error, but these involve two main questions only-the competency of testimony given by the defendant, and sufficiency of the evidence to sustain the findings.

[1] Clara T. Taylor was the mother of the defendant. She died in November, 1926. The administrator brings action to recover $500 and interest which he claims the decedent loaned to the defendant, and of which no part has been paid except the sum of $100 in two payments of $50 each. The defendant alleges that this was money which belonged to him; that he had been in partnership with his father; that the firm had failed; that the partnership had received an exemption of $1,000 from its estate; that the father had received all of this and given it to the mother; that the mother gave him the $500 in question, and he repaid her $100; and that it was agreed by and between him and his mother that the remainder should be considered as a payment to him by her of the amount of his exemption she had received, “and that the account between this defendant and the said Clara T. Taylor should be deemed balanced and adjusted.”

The defendant testified personally as to the transactions with the decedent. The plaintiff objected to the introduction of such testimony on the ground that it was a violation of subdivision 2 of section 7871 of the Code (Comp. Laws 1913) which says: “In civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party. * * *” The defendant recognizes this bar to his competency, but claims it was waived by the plaintiff, who called him for cross-examination under the statute, and went into this subject sufficiently so as to open it up and justify the defendant in making explanations and statements.

The only testimony offered by the plaintiff was given by the defendant, and this is the whole of plaintiff's case, as follows:

“Q. You are Charles A. Taylor, the defendant? A. Yes, sir.

Q. I show you a paper marked for proper identification Exhibit “1” and ask you, Mr. Taylor, if you have seen that before. A. Yes, sir.

Q. That is a Five Hundred Dollar check? A. Yes, sir.

Q. Representing the loan which your mother made you? A. The money I got.

Q. And that was on the 8th of June, 1925? A. Yes, sir.

Q. Has that money ever been repaid, Mr. Taylor? A. Part of it.

Q. How much of it? A. One Hundred Dollars.

Q. And the balance remains unpaid? That is, you haven't actually paid it back to your mother? A. The balance was a gift.

Q. You haven't actually paid it back to your mother? A. No.

Q. All you ever paid is One Hundred Dollars? A. Yes.

Q. Do you remember when you paid that? A. I couldn't give you the exact date.

Q. You paid Fifty Dollars of it along in April, 1926? A. I think so.

Q. And do you remember when the other was paid? A. No, I don't. It was about the 15th of July, I think, of the same year.

Q. About the 15th of July? A. About the 15th of July.

Q. And nothing more has been paid on that? A. No.

Mr. Bangert: We offer in evidence Exhibit 1.

Mr. Duffy: No objection.

Mr. Bangert: I think that proves our part of this case.”

The plaintiff then rested.

The defendant took the stand in his own behalf and was permitted, over the objection of the plaintiff, to testify to financial transactions had with his father as far back as 1913 showing a partnership agreement between him and the father, and carried this along to the time when the partnership failed, and the exemptions were allowed and paid by the creditors of the firm. The objection to this was that such testimony was “incompetent, irrelevant and immaterial for any purpose,” on the theory that the issue in the case was whether there was a gift to the defendant, “so whatever the relation might have been many years prior, of course, wouldn't have any bearing in establishing whether or not there was a gift of Four Hundred Dollars and interest.” There was no error in this. The defendant had the right, under the issues framed, to show, if he could, that the money he received from his mother was money which was owing to him. To do this he was required to show why the money was owing to him and that it had been received by his father and not delivered to him. This was not testifying as to any transaction had with the decedent, and so was not barred by subdivision 2 of section 7871. It referred to transactions had between him and his father. The father was dead, but the estate of the father was not a party to the action. The defendant then testified that his father received all of the exemptions, that $500 of the exemptions belonged to the defendant, and that the check introduced in evidence was for payment to the father of these exemptions. This was proper.

After tracing the exemptions into the hand of his father, the defendant then testified that this money was turned over to his mother, and that the mother, in later giving him the money, was giving him simply what belonged to him.

It is the claim of the defendant that, after the plaintiff called and examined him as hereinbefore set forth, he had the right to explain the testimony which he had given. The plaintiff says defendant was called under the provisions of section 7870 of the statute, providing that “a party to the record of any civil action * * * may be examined upon the trial thereof as if under cross-examination at the instance of the adverse party * * * and for that purpose may be compelled in the same manner and subject to the same rules for examination as any other witness to testify. * * *” The record in plaintiff's case does not show this. The claim was advanced during the presentation of defendant's case, and while plaintiff was invoking the statute. However, defendant seems to have recognized this, for his counsel made no attempt to examine him during plaintiff's case.

[2] Calling for cross-examination does not continue the bar; it merely provides that the party calling the witness is not bound by his testimony. It does not affect the status of the witness, but permits a rebuttal of the same. As stated in Allen v. Shires, 47 Colo. 433, 107 P. 1070, 1071, it is immaterial whether the plaintiff calls the witness as his own witness or for cross-examination under the statute; the court saying, “The purpose for which he is called makes no difference in the application of the principle.” There is nothing in the statute which says the party called by the “opposite party” must confine himself to that part of the transaction regarding which he was interrogated. When once questioned regarding any portion of the transaction, he becomes a competent witness as to all of the transaction, subject to the same rules and objections which apply to any testimony offered. If thus called for cross-examination, the counsel for defendant was not in position to examine him at that time and could not examine him until the plaintiff rested and the defendant opened his case; but there is no rule as to when the further examination must be had. When the defendant went on the stand in his own behalf, he had a right to present testimony relative to the matters of which the plaintiff had inquired when he was under cross-examination. Plaintiff had asked him on cross-examination if the money had been repaid; he stated that any balance remaining unpaid was a gift. He was asked if he had actually paid it back; he was asked if the check represented a loan which the mother made; he did not admit and would not admit it was a loan, but stated it was the money he got from her.

“Transactions” embrace every variety of affairs which conforms to the subject of negotiations, interviews, or actions between the parties, and include every method by which one person can derive...