Jackson v. Smith

• Decision Date: 19 April 1909
• Citation: 118 S.W. 659
• Parties: JACKSON v. SMITH.
• Court: Missouri Court of Appeals

118 S.W. 659

JACKSON v. SMITH.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

WITNESSES (§ 146)—COMPETENCY—TRANSACTION WITH PERSON SINCE DECEASED.

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that, where one of the parties to an action is dead, the other party cannot testify, plaintiff's husband cannot testify to a contract with deceased, made by him as plaintiff's agent.

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by Isadora Jackson against Tully Smith, executrix of the estate of Abner Smith, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

L. J. Miles and W. R. Littell, for appellant. L. D. Ramsay, for respondent.

BROADDUS, P. J.

The plaintiff, a married woman, is the daughter of Abner Smith, deceased. She asserts a claim against her father's estate for services which she alleges she rendered in behalf of her sister, Ellen Jackson, who was at the time a married woman, in taking care of and providing for her under a contract she had with the deceased. The contract was made for her by her agent, her husband. The defendant objected to the competency of the husband as a witness, on the ground that the other contracting party was dead, and that therefore he was incompetent to prove the contract. The objection was overruled, and the witness was allowed to testify to the contract. The verdict was for plaintiff, and the administrator appealed.

The statute removes the disabilities of a party to a suit as a witness by reason of his interest as a party or otherwise, "provided, that in an action where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party to such contract or cause of action shall not be admitted to testify." Section 4652, Rev. St. 1899 (Ann. St. 1906, p. 2520). The Supreme Court, after a review of the cases on the question, holds: "Hence an examination of the cases will show that a party to the contract has been construed to mean the person who negotiated the contract, rather than the person in whose name and interest it was made. Thus, though one party in interest be dead, the other party will be a competent witness, if the contract in issue was negotiated by an agent of deceased who is living at the time of the trial." Banking House v. Rood, 132 Mo. 256, 33 S. W. 816; Miller v. Wilson, 126 Mo. 48, 28 S. W. 640. And it is held: "If both parties to a contract be living, one of them will not be...