Myers v. Litts
| Decision Date | 07 May 1900 |
| Docket Number | 275 |
| Citation | 46 A. 131,195 Pa. 595 |
| Parties | Myers v. Litts |
| Court | Pennsylvania Supreme Court |
Argued February 20, 1900
Appeal, No. 275, Jan. T., 1899, by plaintiff, from judgment of C.P. Lackawanna Co., May T., 1894, No. 264, on verdict for defendant, in case of A. S. Myers v. William P. Litts. Affirmed.
Trespass to recover damages for the alleged wrongful removal and sale of stock and farming implements. Before ARCHBALD, P.J.
At the trial counsel for plaintiff offered to prove by the plaintiff that on or about August 21, 1893, in the city of Scranton the witness entered into a verbal lease with Susan A Vosburg, who at that time was the owner of the farm and personal property in question, by which he became the lessee and Susan A. Vosburg, the lessor, the agreement being substantially as follows: Andrew S. Myers, the plaintiff, the present witness, agreeing to work the place in question upon shares, and to have the use of all the personal property including cattle, stock, hay, grain, etc., on the farm, beginning on April 1, 1894, for one year or longer; that Susan A. Vosburg consented and agreed to the lease in question, and that in pursuance of that lease Andrew S. Myers took possession of the premises and the personal property in question; that afterwards on April 5, 1894, William P. Litts, the defendant and others, proceeded and sold the personal property upon the premises, contrary to notice given to him on several occasions on said date, and taking the property, this personal property, to their own use.
Mr. Newcomb: The offer as a whole is objected to by counsel for defendant on the ground that the witness is incompetent to testify to so much thereof as relates to the parol contract or any transaction that took place between himself and his mother, now dead, and of whom he claims. The offer is further objected to as incompetent, irrelevant and immaterial.
Mr. Soper: In answer counsel for plaintiff says that Susan A. Vosburg, if that is the intention of the objection, is not a party to the record in this case; that she is not interested either directly or indirectly in the outcome of this suit; and that the said Susan A. Vosburg is not in any way interested in the outcome of the suit neither does it affect her estate.
The Court: I think this principle is ruled by the case of Kyte v. Foran, 167 Pa. 252. I happen to be familiar with that case, as I tried it in Susquehanna county. I have an opinion in report manuscript of the court below. While it is not exactly this, in that it is not on all fours with that case, still I think in principle it is. I will sustain the objection. Seal a bill for the plaintiff. That is, as to anything occurring during the lifetime of Susan A. Vosburg.
Exception is noted for the plaintiff at whose request a bill is sealed. [1]
Counsel for plaintiff also offered to prove by the wife of the plaintiff that in August, 1893, she was present and overheard the agreement made between the plaintiff and Susan A. Vosburg, whereby the plaintiff leased the farm in question and the personal property from Susan A. Vosburg, the said lease to begin on April 1, 1894.
Mr. Newcomb. The offer is objected to on the ground that the witness is incompetent, being the wife of the plaintiff, and therefore disqualified in instances where he would be disqualified.
The Court. This offer relates to matters in the lifetime of Mrs. Vosburg, and as the plaintiff would be incompetent, so the witness under the law is also.
Exception is noted for the plaintiff at whose request a bill is sealed. [2]
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned among others were (1) rejection of plaintiff as a witness; (2) rejection of plaintiff's wife as a witness; (4) the overruling of an objection to the admission of certain testimony, without setting out the testimony given under the offer to which the objection was made.
The judgment is affirmed.
C. H Soper, for appellant. -- Plaintiff was a competent witness: Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Dickson v. McGraw, 151 Pa. 98; Gold v. Scott, 5 Pa. Superior Ct. 262; Royer v. Ephrata Boro., 171 Pa. 429; Dutton's Est., Beatty's App., 181 Pa. 426; Sargeant v. Nat. Life Ins. Co.,...
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