Rice v. Martin

• Decision Date: 15 August 1881
• Citation: 8 F. 476
• Parties: RICE v. MARTIN & CLARK and others, Intervenors.
• Court: U.S. District Court — District of Nevada

8 F. 476

RICE v. MARTIN & CLARK and others, Intervenors.

United States Circuit Court, D. Nevada.

August 15, 1881

Lewis &amp Deal, for plaintiff.

C. H Belknap, for defendants.

C. S Variran, for intervenors.

HILLYER D.J.

The plaintiff claims to have been a partner of B. B. Norton, in his life-time, in a band of cattle known as the 'Figure 2 cattle,' and in a ranch known as the 'duck Flat ranch.' The main question is whether he was so or not. Incidental to this is a question of statutory construction involving the law of Nevada, and section 858 of the Revised Statutes of the United States. The question is whether Rice is a competent witness as to transactions between himself and Norton, Norton being dead.

Section 377 of the Practice Act of Nevada abolishes all disqualifications of a witness 'by reason of his interest in the event of the action or proceeding, as a party thereto, or otherwise.' 1 Comp.Laws, 1438. And section 379 provides that 'no person shall be allowed to testify under the provisions of section 377, when the other party to the transaction is dead. ' As amended, St. 1879, p. 49.

Section 858 of the Revised Statutes of the United States enacts that 'in the courts of the United States no witness shall be excluded * * * in any civil action because he is a party to or interested in the issue tried. * * * In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States.' These are the provisions of law in force, and the defendants object to the testimony of Rice on the ground that Norton, the other party to the transaction, is dead. At common law a witness was disqualified who was either a party to the action or interested in the event of the suit. Section 377 removed that disqualification. Under that section every person directly interested in the suit, as a party or otherwise, is competent. The object of the section was to enlarge the competency of witnesses-- to increase the number of cases in which a witness could testify; and it had that effect. Then follows the limitation in section 379: 'No person shall 6e allowed to testify under the provisions of section 377 * * * .' The only persons rendered competent by section 377 were, for our purposes, persons who before had been disqualified by reason of interest in the event of the action or proceeding. It must be some person rendered competent by section 377, not so before, upon whom the restriction in section 379 must be placed. In other words, the witness disqualified by section 379 must be so?e person who had an interest in the event of the action. It could not have been the intention of the legislature to narrow the competency of witnesses, where, before the adoption of section 377, they had been competent. The reference to that section in section 379 forbids that idea. 'Party to the transaction' must, therefore, be referred to a person who had some interest in the event of the action as a party thereto or otherwise; and section 379 must be read as if the language were, 'when the other party (being a person who has an interest in the event of the action or proceeding as a party thereto, or otherwise) to the transaction is dead. ' But by section 858 of the Revised Statutes of the United States no person is to be excluded because he is a party to or interested in the issue tried, with but one proviso, viz.:

'That in actions by or against executors, administrators, or guardians, in which judgment 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, or required to testify thereto by the court.'

This proviso does not embrace this case.

The state statutes are to be rules of decision only in cases where the constitution, treaties, and statutes of the United States do not otherwise provide. When they do otherwise provide, the state laws cease to be of force. To illustrate by so much as fits this case: No witness is to be excluded because he is a party to the issue. This is broad enough to cover every case in which a party is offered as a witness; and the objection is on the ground of interest, as I have endeavored to show it must be in this case. When we look for any exception we find that there is none, except in cases in which the suit is brought by an administrator, executor, or guardian; which is not this case, there being no administrator, executor, or guardian as a party in the case.

It seems to me that in reading section 858 counsel for defendants has taken the exception in the proviso for the rule: 'In the courts of the United States no witness shall be excluded because he is a party. ' This is the rule, with this proviso: 'Provided, that in actions by or against executors, administrators, or guardians neither party shall be allowed to testify against the other. ' And so the court held in Potter v. Bank, 26 Int.Rev.Rec. 403.

'We have seen,; says the court, in Potter v. Bank, 'that the existing statutes of the United States do otherwise provide, in that they forbid the exclusion of a witness upon the ground that he is a party to or interested in the issue in any civil action whatever pending in a federal court, except in a certain class of actions which do not embrace the one now before us.'

In Lucas v. Brooks, 18 Wall, 436, 453, the court says:

'Undoubtedly the act of congress has cut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of her husband is not, and never has been, that she has any interest in the issue to which he is a party. It rests solely on public policy. To that the statute has no application.'

In this latter case the deposition of the wife was refused, and in Packet Co. v. Clough, 20 Wall. 528, 537, it was received because the statute of Wisconsin made the wife a competent witness. Thus showing that the supreme court do not regard the law of congress as in any way affecting the competency of married women, but leave that to rest where it did before. It seems a little hard to reconcile the cases of Packet Co. v. Clough, supra, where the wife's deposition was admitted because the state law so prescribed, section 858 of the Revised Statutes notwithstanding, and Ins. Co. v. Schaefer, 94 U.S. 457, where a confidential communication was kept out notwithstanding the law of Ohio allowing it to be given in evidence. Both matters rest alike on public policy-- neither on interest. When the laws of the United States speak they are controlling. Says the court in the latter case:

'Now the competency of parties as witnesses in the federal courts depends on the act of congress in that behalf passed in 1864, amended in 1865, and codified in the Revised Statutes, Sec. 858. It is not derived from the statute of Ohio, and is not subject to the conditions and qualifications imposed thereby. The only qualifications which congress deemed necessary are expressed in the act of congress; and the admission in evidence of previous communications to counsel is not one of them.'

This is very strong, and fully warrants us in admitting the testimony of the plaintiff, Rice, in this case.

Coming now to the facts, there is nothing in the testimony of any of the plaintiff's witnesses, or in Norton's letter, inconsistent with the theory of the defendants that the purchase of the cattle and ranch was in fact negotiated by and through Rice, on joint account, but was given up for lack of funds to carry out the bargain. All agree that the final delivery did not take place until June 5, 1875. At that date, Rice says he was half satisfied that Norton denied his interest; yet he never, according to his own story, had any distinct understanding with Norton in his life-time. After his death he comes forward to claim a half interest in the ranch, cattle, and increase. In legal contemplation, to be half satisfied is to be put on inquiry, and to know definitely one way or the other. Rice, therefore, knew that Norton denied his interest in June, 1875.

Rice says, at page 52 of his testimony: 'From the summer of 1875 until Norton's death, Norton and I transacted the business of partnership as follows: We consulted together,' etc.; which means, if anything, that Norton recognized him as having an interest. Yet further on, at page 82 et seq., he confesses that he was completely shut out from any management of the alleged partnership property, and half believed that Norton denied his rights so early as June, 1875. When the defendants assert that Rice gave up the contract because he had not enough money to perform it, he has no trouble in showing by himself (page 617) and other witnesses that he had a large amount (between $20,000 and $30,000 worth) of property. When, on the other hand, he is asked to explain why he did not move in this matter during Norton's life-time, and at least have a perfect understanding with him, he says he was too poor to bring a suit and do justice to his creditors; that being half satisfied Norton denied, or would deny, his interest if he approached him on the subject, he never said anything to him.

For a third reason or excuse for his laches he says, at page 56 'Mr. Norton always held out to me' that he would soon be able to settle accounts; i.e., partnership accounts. If he believed that Norton denied his partnership interest, as he must, he could not have had any genuine belief that he would settle. One Albert Shuler (Shuler's deposition) testifies that at the time Rice bought into the Tommy Smith place and cattle, he made arrangements with him to furnish unbroke...