Lines v. Lines
| Decision Date | 20 October 1880 |
| Citation | 7 N.W. 87,54 Iowa 600 |
| Parties | LINES v. LINES ET AL |
| Court | Iowa Supreme Court |
Appeal from Des Moines Circuit Court.
ACTION at law upon an account for board, etc. There was a verdict and judgment for defendants. Plaintiff appeals.
REVERSED.
T. B Snyder, for appellant.
Hall & Huston, for appellees.
I.
The plaintiff is the administrator of her deceased husband's estate; the defendants are guardians of J. R. Lines, an insane person, the father of plaintiff's husband. The action is to recover for the board of J. R Lines and his wife, had of plaintiff's intestate in his lifetime.
Upon the trial plaintiff offered to prove by her own testimony that there was an express agreement between plaintiff's intestate and J. R. Lines that he and his wife should board with the decedent, and pay for their board, and that under this contract J. R. Lines and his wife did board with decedent for the time alleged in the petition. Upon the objection of defendants the evidence was excluded, and this ruling is the foundation of the first objection to the judgment urged by plaintiff. We will proceed to consider it.
II. Code, section 3639, provides that "no party to an action, * * * nor any person interested in the event thereof, * * * * and no husband or wife of any such party or person, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, insane or lunatic, against the * * * guardian of such insane person or lunatic."
This provision is relied upon to support the decision of the court below. It will be observed that it forbids a witness to testify to personal transactions or communications between himself and such person afterwards becoming insane. It does not forbid testimony to personal transactions and communications between such person and another not a witness. Neither does it forbid a party to the action, or a person interested, or his or her wife or husband to testify to personal transactions and communications had with a person other than the party, person interested, or his her wife or husband. The personal transactions or communications must be had with the witness to authorize the exclusion of his evidence. In this case the personal transaction, viz: the contract for board, was not had with plaintiff, the witness, but with the husband. Her evidence was, therefore, admissible. Johnson v. Johnson, 52 Iowa 586, 3 N.W. 661.
Peck v. McKean, 45 Iowa 18, cited by defendant's counsel, is not in conflict with our conclusion. We held in that case that, in an action to recover for services upon an implied contract, brought against an administrator, the plaintiff who performed the services could not, under the section of the Code above quoted, be permitted to testify thereto; that the testimony would tend to establish an implied contract which, with the performance of the labor, amounted to a personal transaction between the parties.
Counsel for defendants insist that the evidence of plaintiff was rightly excluded, for the reason that it varied from the petition, which declared upon an implied promise, the proposed testimony showing an express promise. The petition alleges that the ward of defendants was supplied with board etc., at his special instance and request, which was of the reasonable value claimed in the petition. No express contract is alleged. The petition clearly declares upon an implied contract. At common law declarations upon implied contracts averred an express promise;...
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