Fulkerson v. Thornton

• Decision Date: 31 October 1878
• Citation: 68 Mo. 468
• Parties: FULKERSON v. THORNTON, Administrator, et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 468

FULKERSON

v.THORNTON, Administrator, et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

Wilson & Gantt for appellants.

M. A. Fyke for respondent.

SHERWOOD, C. J.

Action for damages for breach of alleged contract for building a church; the plaintiff claiming that the defendants had employed him to build the church, and after its commencement and partial completion, had prevented him from going on with the work. Answer, a special denial; trial, and verdict for plaintiff.

1. WITNESS: death of one of two adverse parties.

I. Objection was made to plaintiff testifying on the ground that as Wm. T. Thornton, Sr., one of the alleged contracting parties, was dead, plaintiff was an incompetent witness. This objection was, we think, properly overruled. Thornton, the deceased, was not the sole contracting party; that party was composed of Thornton and Hitch, the latter being alive at the time of trial. The legal party to the contract did not consist of a single individual, but of two persons--Thornton and Hitch. If the contract had been made with Thornton alone, and he was dead at the time of trial, a widely different question would be presented. The point is a new one in this State, and, consequently, any authorities cited from our own reports, or from those of other States, relative to a class of cases where the sole contracting party is dead, have not the slightest applicability. In Massachusetts, where the statute in regard to witnesses is substantially like our own, the ruling as to the competency of a witness under similar circumstances to those above detailed, has been in accordance with the views here enunciated. Goss v. Austin, 11 Allen 525; Hayward v. French, 12 Gray 453. The reason of the statutory prohibition, is the prevention of one person testifying where death has sealed the lips of his adversary; a reason which cannot possibly apply where there are other persons, still alive, who were co-contractors with the decedent, cognizant of all the facts as well as he was, able, therefore, to testify in opposition to the testimony of the witness objected to as being incompetent because of the death of one of the cocontractors. As the reason for the rule does not exist, no more does the rule.

2. PRACTICE.

II. In reference to the second alleged error, that of admitting in evidence the unsigned memorandum of the the contract which Prottsman drew up and which Thornton and Hitch...