Ratliff v. Jewell

• Decision Date: 19 September 1929
• Parties: J. L. RATLIFF, ADMINISTRATRIX v. JOHN JEWELL AND ESTHER JEWELL.
• Court: Virginia Supreme Court

Page 315

153 Va. 315

J. L. RATLIFF, ADMINISTRATRIX v. JOHN JEWELL AND ESTHER JEWELL.

Supreme Court of Virginia, Staunton.

September 19, 1929.

Absent, West, J.

1. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — Case at Bar. — Section 6209 of the Code of 1919, provides that in an action by or against one who is incapable of testifying or by or against his executor or administrator, no judgment shall be rendered in favor of "an adverse or interested party" founded on his uncorroborated testimony, and that after such adverse party testifies memoranda and declarations of the party so incapable of testifying shall be received as evidence. The instant case was an attachment brought by an administratrix to collect two notes executed by a husband and wife. The husband pleaded set-off for work and labor done by him for the decedent, and materials furnished. The husband testified as to the agreement between him and the decedent and his wife testified substantially to the same state of facts.

Held: That the attachment was on a joint debt of the husband and wife and that this debt was cancelled and satisfied by a judgment in favor of the husband for $637.83 less the amount of the two notes of $303.00; that the wife's interest was plainly manifest and under section 6209 of the Code of 1919, the testimony of both husband and wife was required to be corroborated.

2. WITNESSES — Interest — Disqualification. — Under the Virginia statute the interest of a witness is no longer a disqualification.

3. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — Object of the Statute. — The object of section 6209 as to corroboration in actions by and against one who is incapable is twofold — that is, to provide first that there shall be no judgment in favor of an adverse or interested party founded on his uncorroborated testimony; and second, in case an adverse party testifies, then to admit as evidence the memoranda and declarations of the opposite party incapable of testifying.

4. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — "Adverse" and "Interested" — Parties to the Record. — To hold that the words used in section 6209 of the Code of 1919, "adverse" or "interested" party whose testimony requires corroboration, are synonymous and refer only to the parties of the suit, is to hold that the word "interested" in that connection is superfluous. If then we are to attach any effective meaning to this word (interested) we must hold that one who has a pecuniary interest in the recovery, although not a party to the record, is a witness requiring corroboration.

5. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — What Constitutes Disqualifying Interest. — A disqualifying interest may result from the witness being liable for the debt therefor, liable to reimburse the party for whom his testimony is offered in case the decision is against such party, or subject to liability from which the success of the party in whose favor he would testify would relieve him, an interest in the property concerned in the litigation which may be beneficial or adversely affected by the result of the suit, a beneficial interest in the fund sought to be recovered, or a liability for costs of the action.

6. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — Case at Bar. — The instant case was a suit by an administratrix on a note given by a husband and wife. The husband pleaded a set-off for work done by him for decedent and materials furnished.

Held: That the husband was an interested witness and the wife was also an interested witness and that both must be corroborated and that they could not corroborate each other as to the set-off.

7. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Actions by and Against Representatives — Section 6209 of the Code of 1919 — What Constitutes Disqualifying Interest — Sufficiency of Corroboration. — No hard and fast rule can define satisfactorily what is sufficient corroboration. The witness need not be corroborated on all material points but must be supported on some essential fact whose establishment is necessary to sustain the judgment. If the testimony to be corroborated is inconsistent and contradictory then to speak of corroboration at all would be a solecism.

8. WITNESSES — Corroboration — Contradictory Evidence — Case at Bar. — In the instant case, an action against husband and wife on their joint notes, the husband pleaded set-off and testified that he had an agreement to do work and labor and furnish materials for decedent and that the account for the work and labor and materials was not to become due until final settlement has been made. It appeared from his testimony that while the work was in progress a large sum of money was paid him by decedent in 1920-21. The final settlement was not made until 1925. Thus it appeared that decedent who was so careful in postponing the day of settlement, paid the great bulk of the indebtedness five years before it was due. While this testimony is hardly contradictory — a man may pay his debts before they are due — it does go directly to the credibility of this testimony.

9. DOCUMENTARY EVIDENCE — Book Entries — Entries made in Regular Course of Business. — Shop books, books of account, bank books, etc., are competent as evidence and frequently useful, but to be admissible or to have any value as such must ordinarily appear to have been made in the regular course of business and as a part of the party's system of keeping his accounts. Experience has demonstrated that their admission must be hedged about with certain safeguards.

10. DOCUMENTARY EVIDENCE — Book Entries — Regular Course of Business. — The first general requirement to the admission of a book entry in evidence is that it should have been made in the regular course of business. This may be defined to mean a course of transactions performed in one's habitual relations with others and as a natural part of one's mode of obtaining a livelihood.

11. DOCUMENTARY EVIDENCE — Book Entries — Regular Cause of Business — Casual Entry — Item Embracing Number of Separate Transactions. — In order to be admissible a book entry must have been a part of a regular series of entries — not for example, a casual sale of an acticle not regularly dealt in, or a casual entry at the beginning of a blank book or at the end of a book already finished and laid aside. Again, the entry is not usable if it shows that it embraces in one item a number of separate transactions, or is in any other way so loosely made that regularity of entry cannot be predicated.

12. DOCUMENTARY EVIDENCE — Book Entries — Time of Making Entry — Recitals of Past Transactions. — In order that book entries may be admitted in evidence it is a distinct requisite that the first entry made, regardless of whether permanent or a mere memorandum, be made at or about the time of the transaction noted. Entries to be admissible may not be recitals of past transactions. They must be accounts or notations or transactions as they occur. Accordingly it is very clear that shop books may not be received as evidence where the entries therein are not made at or about the time of the transaction.

13. DOCUMENTARY EVIDENCE — Book Entries — Time of Making Entries — Case at Bar. — In the instant case, an action on joint note of husband and wife by an administratrix, the husband pleading a set-off and in support of his demand offered a memorandum book in evidence. The major item relied upon by the husband as a set-off was that of 219,046 feet of lumber for which $2,409.50 was charged. This entry was a lump sum made four or five years after the work was done. While it was competent for the witness to refresh his recollection by a reference to this memoranda, this gave no weight to the memoranda themselves. To permit a recovery on the strength of a disconnected entry written in a book or elsewhere would be to break down every safeguard.

14. WITNESSES — Corroboration — Actions by and Against One who is Incapable — Sufficiency of Corroboration — Case at Bar. — The instant case was an action by an administratrix against a husband and wife on their joint notes. The husband pleaded by way of set-off a claim against the decedent for work and materials furnished on a lumbering contract. The husband and wife testified that the sum demanded as set-off was due the husband. Other witnesses were introduced to corroborate them but their evidence amounted to no more than that they did not see the lumber measured on the yard and did not know what became of it. The contract as stated by the husband was not an ordinary one and the circumstances were against him. The husband's credit had been cut off by the decedent. He was working as a day laborer in another State. Only when his property was attached did he undertake to assert his claim of set-off. That was seven years after the work was done and two years after the death of decedent. During all this time decedent was solvent and the husband was in need.

Held: That the husband and his wife were not sufficiently corroborated as to the claim of set-off as required by action 6209 of the Code of 1919.

Error to a judgment of the Circuit Court of Buchanan county, in a proceeding by attachment. Judgment for defendants. Plaintiff assigns error.

The opinion states the case.

A. A. Skeen and H. Claude Pobst, for the plaintiff in error.

Williams & Combs, for the defendants in error.

HOLT, J., delivered the opinion of the court.

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