Hunt v. Eaton

• Decision Date: 19 November 1884
• Citation: 55 Mich. 362,21 N.W. 429
• Court: Michigan Supreme Court
• Parties: HUNT v. EATON.

21 N.W. 429

55 Mich. 362

HUNT v. EATON.

Supreme Court of Michigan

November 19, 1884

Error to the superior court of Detroit.

Griffin & Warner, for plaintiff.

Edgar Weeks and W.B. Jackson, for defendant, appellant.

CHAMPLIN, J.

In 1880 Alonzo Eaton and Ellen V. Eaton were married. At this time Mr. Eaton was in straightened circumstances, and Mrs. Eaton had in her hands something like $5,000, which belonged to her daughter, by a former marriage. At Mr. Eaton's request she loaned him from time to time sums of money amounting in the aggregate to $600, and also paid a number of bills for household expenses and wearing apparel, the whole amounting at the time of the commencement of this suit, including the money loaned, to $3,322.58. She took no written evidences from him of any agreement in reference to these loans and advances, but the next day after their marriage, or within 10 days after the nuptials were celebrated, in the privacy of their chamber, and with no one else present, he agreed and promised his wife that if she would make advancements of money to take care of the house, and whatever money she should let him have he would pay her back every dollar when he sold a certain homestead which he owned, and which was incumbered by a mortgage. Mr. Eaton not having sold the homestead, and having repudiated any liability to his wife, she assigned her claims against her husband to the plaintiff, who has brought this suit. Mr. and Mrs. Eaton, at the time of the trial, were living together as husband and wife.

To prove his case, the plaintiff introduced as a witness Mrs Eaton, the wife of defendant. The defendant objected to her testifying. The plaintiff's counsel proposed to prove by the witness the facts above narrated; and thereupon the counsel for defendant insisted upon his objection, for the reason that the wife is not a competent witness to testify against her husband in an action brought in her own behalf nor in an action where the subject-matter of the suit is brought by her assignee. The judge of the superior court of Detroit overruled the objection, and permitted the witness to testify fully as to what occurred between the defendant and witness relative to the agreement as to advances and repayments, not made in the presence of other persons, and while they were husband and wife. To this the defendant excepted, and it constitutes the main ground of error relied upon for a reversal of the judgment.

Whether this testimony was competent depends upon the construction to be given to section 7546, How.St., which reads as follows "A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent. Except in cases where the husband or wife shall be a party to the record in a suit, action, or proceeding where the title to the separate property of the husband or wife, so called or offered as a witness, or where the title to property derived from through, or under the husband or wife so called or offered as a witness shall be the subject-matter in controversy or litigation in such action or proceeding, in opposition to the claim or interest of the other of said married persons who is a party to the record in such suit, action, or proceeding and in all such cases such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title...