Looker v. Davis

• Decision Date: 31 October 1870
• Citation: 47 Mo. 140
• Parties: HAMPTON LOOKER, Respondent, v. JOSEPH DAVIS et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 140

HAMPTON LOOKER, Respondent,

v.JOSEPH DAVIS et al., Appellants.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Lackland, Martin & Lackland, and A. H. Buckner, for appellants.

I. The Circuit Court of St. Charles erred in framing issues and sending them out to be tried by a jury in this case. This was a chancery case, and neither party had any right to demand a jury. (Morris v. Morris, 28 Mo. 114-17.)

II. The court erred in allowing the plaintiff to testify to an alleged contract made by him with John B. Davis in his lifetime. This alleged contract is the foundation of plaintiff's claim. It was the matter in issue and on trial. An executor is not a competent witness in his own behalf to support a charge in his probate account of money paid to himself individually for services rendered the testatrix in her lifetime. (Ela v. Edwards, 97 Mass. 318.) The exception contained in the statute under which this decision was made, is the same as ours. The test of competency is “the contract or cause of action in issue and on trial.” If the cause of action was a matter transacted with a person who has deceased, the other party to that transaction, being also a party to the suit, is not admitted as a witness at all. (Granger et al. v. Bassett, 98 Mass. 462-8.) In a suit by an indorser of a note, if the payee be dead, the defendant is incompetent to testify. (Byrne v. McDonald, 1 Allen, 293.) If a note is taken by A. in his own name for the benefit of B., and A. dies, the defendant is not a competent witness in an action upon the note by an indorsee. (Hubbard v. Chapin, 2 Allen, 328.) In an action against an administrator to recover for money paid by plaintiff, as agent of defendant's intestate, the plaintiff is not a competent witness in his own favor. (Brown v. Brightman, 11 Allen, 226; Green v. Gould, 3 Allen, 465; Fisher v. Morse, 9 Gray, 440; Ayres, Adm'r, v. Ayres, 11 Gray, 130; Hayward v. French, 12 Gray, 453; Malady v. McEnary, 30 Ind. 273; Lee v. Dill, 39 Barb. 516.)

III. A plaintiff in a suit in equity, brought to establish a lost or destroyed will, against the administrator and next of kin of the testator, is not a competent witness in his own behalf to prove conversations had between himself and the deceased at the time of making the will and before, on the subject of making his will. (Timon v. Cloffey et al., 45 Barb. 438; Clark v. Smith, 46 Barb. 30; Dyer, Adm'r, v. Dyer et al., 48 Barb. 190; Lobdell v. Lobdell et al., 32 How. 1; Farnum, Adm'r, v. Virgin, 52 Me. 576; Little v. Little, 13 Gray, 264; 4 Allen, 184; Jones v. Walcott, 15 Gray, 541; Stanton v. Ryan, 41 Mo. 570; State ex rel., etc., v. Meagher, 44 Mo. 336.) It is submitted that it appears from principle and authority that plaintiff, Looker, was not a competent witness to testify to a contract or agreement alleged to have been made between himself and John B. Davis, deceased.

J. B. Henderson, for respondent.

I. The court had a perfect right to take the opinion of a jury upon the specific questions of fact involved in the pleadings. (Gen. Stat. 1865, ch. 169, § 13.) This court, in Morris v. Morris, 28 Mo. 114, did not deny the authority of the court to submit issues to a jury, but expressly declared that “the court has a discretion, and should exercise it in order to determine whether the case is a proper one for a jury.” (Wagn. Stat. 1040.)

II. This was a contract between Prince and Davis; and Looker, under the statute, is as competent to testify as to its terms as any disinterested person. Even if the appellants' theory be taken, that the contract, if made, included Looker as a party to it, yet if the contract between Looker and the deceased is not necessarily “in issue and on trial” in this proceeding, he is a competent witness. It matters not, so far as the issues here are concerned, whether Davis and Looker had a contract about the land or not. No such contract can be “in issue.” The rule is to admit parties and persons in interest to testify. The exclusion will be strictly construed. To the case of The Manufacturers' Bank v. Schofield, 39 Verm. 590, the attention of the court is specially called, where the words of the Vermont statute, in the precise words of ours, are explained. The court there says that “by the words ‘contract or cause of action in issue and on trial,’ as used in the statute, the Legislature evidently intended such contract or cause of action as was to be enforced by the proceeding--that in regard to which an issue was to be formed and a trial had, where the rights of the parties to the contract or cause of action would be determined by the result.” The court further say that the “contract between Flood (who had died) and the Schofields (who were defendants, and offered as witnesses) is brought in incidentally as explaining and giving force and effect to what took place between Wellington, the cashier, and the Schofields.” In this proceeding there is no contract between Looker and the deceased (Davis) “to be enforced,” nor any rights between the estate and Looker “to be determined by the result.” Any contract that may have been made between Davis and Looker can only be incidentally brought in here, “as explaining and giving force and effect to what took place” between Davis and Prince. Under the New York statute of 1869, it was held that plaintiff was a competent witness to show a deposit of money in bank to the credit of decedent, under a custom or general arrangement with him, because it was not testimony in respect to “transactions or communications had personally” with deceased. (Franklin v. Pinkney, 2 Rob. 429.) Nor does the statute exclude a party from testifying to the particulars of a transaction which took place between the deceased and a third person in the presence of the witness. (Lobdell v. Lobdell, 36 N. Y. 327; 4 Abb. Pr. 56; 53 How. Pr. 347.)

WAGNER, Judge, delivered the opinion of the court.

The record shows that in 1857 John B. Davis sold and conveyed to one Printz a tract of land in Montgomery county, for $3,800, and, to secure the purchase money in three equal payments, Printz gave his notes to Davis and executed a deed of trust on the land sold, to one David Thomas, as trustee. In 1859 Davis died, leaving Thomas his executor; and afterward Thomas, as trustee in the deed, proceeded and sold the land under the terms of the deed of trust; and Joseph Davis, who is the defendant in this suit and also a son of John B. Davis, bought it and received a deed therefor.

Joseph Davis, the purchaser, brought an action of ejectment against Looker, the plaintiff in this suit, for the possession of the land, and Looker instituted this proceeding in the nature of a bill in equity to enjoin Davis from further prosecuting his action in ejectment and to set aside the trustee's deed from Thomas to Davis.

In his petition the plaintiff, after reciting the facts of sale as above set forth, says that Printz took possession of the land under the conveyance from Davis, but ascertaining that he would not be able to pay the consideration, or for some other cause, it was agreed by and between the said John B. Davis and the said Printz that upon the execution of a deed...