Nat'l Rubber Supply Co. v. (asselin

• Decision Date: 08 July 1915
• Docket Number: No. 1785.,1785.
• Citation: 20 N.M. 624,151 P. 694
• Court: New Mexico Supreme Court
• Parties: NATIONAL RUBBER SUPPLY CO.v.OLESON & EXTER ET AL. (ASSELIN, INTERVENER).

20 N.M. 624

151 P. 694

NATIONAL RUBBER SUPPLY CO.

v.OLESON & EXTER ET AL. (ASSELIN, INTERVENER).

No. 1785.

Supreme Court of New Mexico.

July 8, 1915.On Motion for Rehearing, Sept. 8, 1915.

Syllabus by the Court.

Section 2175, Code 1915, provides that: “In a suit by or against the heirs * * * of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” Held that, in order to satisfy the statute, the corroborating evidence must be such as would, standing alone and unsupported by the evidence of the claimant, tend to prove the essential allegation or issue raised by the pleadings.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by the National Rubber Supply Company against Oleson & Exter and others, wherein Herbert Asselin, administrator of the estate of Joseph A. Nadeau, deceased, intervened. From judgment for plaintiff, intervener appeals. Reversed, with directions to award new trial.

Section 2175, Code 1915, provides that: “In a suit by or against the heirs * * * of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” Held that, in order to satisfy the statute, the corroborating evidence must be such as would, standing alone and unsupported by the evidence of the claimant, tend to prove the essential allegation or issue raised by the pleadings.

Marron & Wood, of Albuquerque, for appellant.

H. C. Miller, of Albuquerque, for appellees.

ROBERTS, C. J.

The intervener, Herbert Asselin, as administrator of the estate of Joseph A. Nadeau, appeals from the judgment of the Bernalillo district court in favor of the plaintiff in an action in replevin, adjudging title to a quantity of bicycle tires in the plaintiff, and for the recovery of the value thereof. The record shows the following facts:

On October 7, 1913, plaintiff's agent and traveling salesman took the order of J. A. Nadeau, appellant's intestate, for the property in question. The memorandum of the sale was reduced to writing by the salesman, one copy given to Nadeau, and another copy sent to the plaintiff at Denver. This memorandum of the order was introduced in evidence as Exhibit A, and is as follows:

Date Sale The National Rubber Supply Co., Exclusive Rubber Goods 10-7 1633 Court Place, Denver, Colo Terms 5% Apr. 10. Sold to J. A. Nadeau; Town, Albuquerque; State, N. M. Salesman, Ship Jan. 1st, via Frt (Allowed). Davidson. Quantity. Size. Description. Price. 25 Pr. 28x1 1/2 Nadeau Special--X Red Tires 3.75 Same as furnished--heretofore 10 pr. 28x1 1/2 Erie Special 2.75 22475A Received Oct. 10, 1913. Answered 10. X Ord. 10. 24th.

Upon receipt of the order at Denver, the goods were shipped at once, and were duly received by Nadeau at Albuquerque, and were in his place of business at the time of Nadeau's death, which occurred on the 20th day of November, 1913, and passed to the possession of his administrator, who sold them to the defendants Oleson & Exter. The plaintiff, on December 23, 1914, filed a complaint in replevin, alleging that the said tires were shipped under a misapprehension of fact. Later plaintiff filed an amended complaint, in which it was alleged that the tires were:

“Sold by the plaintiff to one J. A. Nadeau, with the agreement then and there made by and between the plaintiff and the said J. A. Nadeau that the title to the said tires should not pass from the plaintiff to the said J. A. Nadeau until the said J. A. Nadeau had paid to plaintiff a certain bill for material theretofore furnished the said Nadeau by the plaintiff.”

This allegation was denied by the defendant, and upon the issue so made the cause proceeded to trial. Upon the conclusion of the trial the court found, among other things:

“That it was the intention of the plaintiff and J. A. Nadeau that the title to the goods described in the complaint should not pass to J. A. Nadeau until the performance of said condition,” to wit, the payment of the pre-existing indebtedness;

And the court further found:

“That the testimony of the witness T. S. Davidson in this regard is corroborated by the written memorandum introduced in evidence as Plaintiff's Exhibit 1.”

Upon the basis of these findings, the court held as a conclusion of law that:

“The title to the property * * * did not pass to J. A. Nadeau by the delivery of the property before the performance or waiver of the condition.”

And he entered judgment for the plaintiff, from which judgment this appeal is prosecuted.

While three points are relied upon for a reversal by appellants, it is only necessary to consider the question as to whether the testimony of the witness Davidson was sufficiently corroborated to justify the judgment, under section 2175, Code 1915, which reads as follows:

“In a suit by or against the heirs * * * of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

The witness Davidson was an officer of the appellee company and the representative of such company in the transaction with the deceased, Nadeau, and appellee concedes that it was necessary to corroborate his testimony under the statute quoted, in order to entitle it to recover. The only evidence relied upon, for corroboration, is the notation in the bill of sale, “Ship January 1st.” This, appellee contends, satisfies the statute and justifies a recovery, in that it shows that deceased was not to receive the goods until after the date named. As we view the language, however, it is...