Harding v. Grim

• Decision Date: 03 May 1894
• Citation: 36 P. 634,25 Or. 506
• Parties: HARDING v. GRIM.
• Court: Oregon Supreme Court

36 P. 634

25 Or. 506

HARDING v. GRIM.

Supreme Court of Oregon

May 3, 1894

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by E.J. Harding against B.J. Grim, administrator of J.W Grim, deceased, on a note. From a judgment for defendant plaintiff appeals. Affirmed.

Bonham & Holmes, for appellant.

Tilmon Ford and Wm. M. Kaiser, for respondent.

BEAN J.

This is an action against the defendant, as administrator of the estate of J.W. Grim, deceased, upon a promissory note made, executed, and delivered by his intestate to plaintiff on February 7, 1858, for the sum of $536, payable two years after date, for which a verified claim was duly presented to and rejected by the defendant, as such administrator, on the 11th day of October, 1892. The defense is the statute of limitations. To take the case out of the statute, the plaintiff offered himself as a witness and produced, and gave in evidence, the note in question upon which were the following indorsements in the handwriting of the plaintiff: "Received fifty-three ($53.60) and sixty cents April 15th, 1880." "Received April 16, 1881, fifty-three dollars and sixty-three cents on within, as one year's interest." "Received on within eighty (80) dollars April 5, 1882." "Rec'd June 16, 1883, $50.00." "Rec'd July 20th, 1883, three hundred ($300.00) dollars." "Received $30.00 June 15, 1887." He testified that the payments indorsed on the note were each made by the intestate, and were indorsed thereon by the witness, at the time they bore date; that the payment of June 15, 1887, was made while plaintiff and intestate were going to a reunion of the Oregon Pioneers; and that the indorsement thereof was made in the presence of the intestate. The witness had no special recollection of the other payments, but testified that they were made by the maker of the note, and by the witness indorsed thereon at or about the time of such payments. The plaintiff then called one Joseph Osborn, who testified that some time in 1880 the intestate gave him $53 and some cents, with directions to give it to the plaintiff to apply on "that note," which he did. At the trial the plaintiff was nonsuited, on motion of the defendant, because he had not proven a cause sufficient to be submitted to the jury, by evidence other than his own, as required by section 1134, Hill's Code. This section, among other things, provides "that no claim which shall have been rejected by the executor or administrator, *** shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant." The effect of this statute is that, while the claimant is a competent witness in an action against an executor or administrator upon a claim or demand against the estate of the deceased, he cannot prevail in the action unless he proves his case by some competent or satisfactory evidence other than the testimony of himself. His testimony may be used, perhaps, to corroborate other evidence in the case, but it is not sufficient, in itself, to establish his claim. There must be evidence tending to support the action, independent of his testimony, sufficient to go to the jury, and upon which the jury, or other trior of fact, would be authorized to find in his favor. As a consequence, it was incumbent on the plaintiff in this case to furnish some competent evidence tending to support his claim, other than his own testimony, and unless he did so the nonsuit was properly granted. Now, the note in suit is barred by the statute of limitations, and therefore furnishes no evidence of a present liability against the estate, unless there has been a payment made thereon by the intestate within six years prior to the commencement of the action. The burden of proof to establish such payment is upon the plaintiff (Wood, Lim.Act. § 116; Riggs v. Roberts, 85 N.C. 151); and, under the statute quoted, he is required to do this by some competent or satisfactory evidence other than his own testimony.

It is admitted that payment on the note by the intestate, within the time stated, would be a sufficient answer to defendant's plea of the statute, because it would be inconsistent with any other supposition than an acknowledgment by him of a continued liability. But the question presented by the record is whether the testimony of Osborn, and the indorsements on the note made by plaintiff which was all the testimony offered or admitted tending to show payment, other than the testimony of plaintiff, either separately or together, furnish any evidence that should have been submitted to the jury, from which they might have found that such payment was made. It is clear the indorsements alone, the first of which was made 20 years after the note became due, and long after it was...