Montague v. Thomason
| Decision Date | 28 January 1892 |
| Citation | 18 S.W. 264 |
| Court | Tennessee Supreme Court |
| Parties | MONTAGUE <I>et al.</I> v. THOMASON <I>et al.</I> |
Action by John F. Montague and C. Buchanan, executors, etc., of A. T. Hassell, against F. M. Thomason and others, on a promissory note. Judgment for plaintiffs, and defendants appeal in error. Affirmed.
R. A. Haggard, for plaintiffs in error. John F. Montague and Pitts & Meeks, for defendants in error.
This is an action on a promissory note. The circuit judge tried the case without a jury, and rendered a judgment for defendants. Plaintiffs appealed in error. The note sued on is as follows: A. T. Hassell, the payee, died testate, and his executors, Montague and Buchanan, finding the note among the valuable papers of their testator, brought this suit against the makers to enforce collection. Defendants admit the execution of the note, but insist that it was paid to the testator by the execution of another note in renewal thereof. The alleged renewal note is in these words and figures: This note also came to the hands of the plaintiffs as an asset of their testator, and was by them collected from the defendants before the commencement of this suit.
The evidence introduced by defendants, if competent, clearly established their contention, and justified the judgment of the trial judge. Plaintiffs insist, however, that all the evidence tending to show payment by renewal was incompetent, and that its admission, over their objection, was improper and erroneous. Defendant F. M. Thomason went on the stand in his own behalf, and testified, over objection, that he received a letter (which he had lost) from A. T. Hassell, authorizing a renewal of the note sued on by pre-payment of interest and execution of another note for same amount and signed by same persons, and promising to send him, as satisfied, the note sued on, when the renewal note should be delivered; that he, Thomason, in pursuance of that letter, caused the second note above set out to be executed in payment and renewal of the note sued on, and sent it, with the interest, to Hassell by mail; that for some reason unknown to him Hassell failed to send him the renewed and satisfied note as promised in the letter. Though Thomason was not disqualified to speak as a witness by the mere fact of being a party to the suit, (Mill. & V. Code, § 4563; Key v. Halloway, 7 Baxt. 579; Hill v. McLean, 10 Lea, 115; Jones v. Waddell, 12 Heisk. 338,) he was incompetent to testify "as to any transaction with or statement by" Hassell, testator of plaintiffs. The language of the statute is as follows: "In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party." Mill & V. Code, § 4565. Obviously the disqualification extends to and embraces every transaction with or statement by the deceased, whatever be its nature, and whether oral or in writing; the prime object being to put litigant parties upon equal footing in the courts, and prevent the living from testifying against the dead. The testimony of Thomason includes both a transaction with and a statement by the deceased, and, consequently, is doubly incompetent, —within the prohibition of the statute in a twofold sense. He testifies to the extinguishment of the note sued on by the execution and delivery of another note in its stead. If that was not a transaction, it would, indeed, be impossible to state what would constitute a transaction between the maker and payee of a note. Having been participated in by both of them as parties in interest, it was manifestly a transaction by the witness with the deceased, and vice versa. As an important link in the transaction, Thomason details the proposition made by Hassell, the contents of his letter, which, of necessity, was a statement by the deceased, if written or authorized by him. That the exchange or novation of notes was accomplished by means of written correspondence between the parties signifies nothing in determining the competency or incompetency of Thomason's testimony. A written transaction with or statement by a deceased person is no more a matter about which the adverse party may testify than a verbal transaction or statement. The statute makes no distinction. Its prohibition, on the contrary, is general; not limited to transactions and statements of one kind or the other,...
To continue reading
Request your trial
-
Baker v. Baker
...as against the exclusion of the testimony and in favor of its admission. Hughlett v. Conner, 12 Heisk. 83, 59 Tenn., 83; Montague v. Thomason, 91 Tenn. 168, 18 S.W. 264; Rielly v. English, 9 Lea 16, 77 Tenn. Thus, it has a number of times been held that on an issue of devisavit vel non the ......
-
Jackson v. Smith
...Ga. 760, 33 S. E. 30; Cullen v. Woolverton, 65 N. J. Law, 279, 47 Atl. 626; McBrien v. Martin, 87 Tenn. 13, 9 S. W. 201; Montague v. Thomason, 91 Tenn. 168, 18 S. W. 264; Whitman v. Foley, 125 N. Y. 651, 26 N. E. 725). It is true there are several states in which it is ruled that the life o......
-
Kurn v. Weaver
...the one called upon to testify, even though a judgment might be rendered for or against the personal representative. See Montague v. Thomason, 91 Tenn. 168, 18 S. W. 264. In this view, it is clear that the present case is not one wherein plaintiff was an incompetent witness with respect to ......
-
Leffew v. Mayes
...and (2) the subject matter of the testimony must be concerning some transaction with or statement by the testator. Montague v. Thomason, 91 Tenn. 168, 18 S.W. 264 (1892). We hold that both requirements are met in the present lawsuit and that the testimony of Mrs. Leffew that she paid Daniel......