Holman v. Bachus

• Decision Date: 31 October 1880
• Parties: HOLMAN et al., Appellants, v. BACHUS.
• Court: Missouri Supreme Court

73 Mo. 49

HOLMAN et al., Appellants,

v.BACHUS.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Maries Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

H. C. Ewing and A. M. Hough for appellants.

Belch & Silver and Parker for respondent.

HENRY, J.

This is an action on a note executed by one Hawkins and defendant, payable to plaintiffs' testator, and the only defense, which there was any attempt to prove, was payment. The trial resulted in a judgment for defendant, from which plaintiffs have appealed. Defendant introduced as a witness Mrs. Jones, formerly wife of Hawkins, deceased, one of the makers of the note, who testified that Lazarus Holman came to their house in 1867 or 1868 and staid all night; that he made a calculation of the amount due on the note in suit, which he had not with him, and said to her husband, that there was about $50 balance due on the note; that he was in need of that amount, and if it were more than was due, he would refund it; that her husband paid him $50, and Holman was to send him the note when he returned home. Plaintiffs objected to Mrs. Jones as a witness, on the ground of incompetency, but the court overruled the objection, and this ruling presents the principal question in the case.

1. WIFE, WHEN NOT A COMPETENT WITNESS.

By the common law, persons interested in the result of a suit, whether parties or not, were not competent witnesses in the cause. Nor could husband and wife testify for or against each other in a cause in which either or both were parties. Here, by our statute, interest in the event of a suit no longer disqualifies; (§ 4010, R. S. 1879;) and section 4014 specifies the cases in which a wife may testify in a suit for or against her husband, whether she be a party or not. The statute, being in derogation of common law, must be strictly construed. After enumerating the cases in which the wife may testify, it provides: “That nothing in this section shall be construed to authorize or permit any married woman, while the relation exists, or subsequently, to testify to any admission or conversations of her husband, whethor made to her or to third parties.” The proviso is clumsily constructed. The words, “or conversations” seem to have been inserted as an amendment to the proviso without the addition of necessary words to complete the sentence. As it now stands, she cannot testify to admissions of her husband, made to any one--which is unambiguous; but she is not permitted to testify to conversations of her husband to herself, or to third parties, whether such conversations contained admissions by him or not, and although what was said by the other party to the conversation should consist of declarations or admissions entirely in the husband's favor. If by the section, the only object was to prohibit the wife from testifying to admissions of the husband, whether made in conversations or otherwise, that purpose was fully accomplished without the words “or conversations,” and we are, therefore, to give to the section an additional import to that which the other words of the proviso would have conveyed without them....