Robertson's Ex'r v. Atl. Coast Realty Co

• Decision Date: 17 March 1921
• Citation: 106 S.E. 521
• Parties: ROBERTSON'S EX'R. v. ATLANTIC COAST REALTY CO.
• Court: Virginia Supreme Court

106 S.E. 521

ROBERTSON'S EX'R.

v.ATLANTIC COAST REALTY CO.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Errors to Hustings Court of Petersburg.

Assumpsit by the Atlantic Coast Realty Company against Robertson's Executor. Judgment for plaintiff, and defendant brings error. Reversed.

Mann & Townsend, of Petersburg, and C. V. Meredith, of Richmond, for plaintiff in error.

Lassiter & Drewry, of Petersburg, and James Mann, of Norfolk, for defendant in error.

BURKS, J. This is an action of assumpsit brought by the Atlantic Coast Realty Company, a North Carolina corporation doing business in Virginia, against the executor of Wirt Robertson, to recover damages for the breach of an alleged parol contract, whereby the plaintiff was to have the exclusive privilege of selling a tract of 418 acres of land of Robertson for a stipulated compensation. Action was first brought in the United States District Court at Richmond, against Robertson in his lifetime. There was a demurrer to the declaration, which was sustained, but on appeal to the United States Circuit Court of Appeals the judgment was reversed, and the cause remanded for a trial on the merits. 240 Fed. 372, 153 C. C. A. 298. There the plaintiff asked leave to amend its declaration, but the application was refused, whereupon the plaintiff suffered a nonsuit, and brought the present action in the hustings court of the city of Petersburg, Robertson having died in the meantime. The defendant demurred to the declaration, and the demurrer was sustained. On a writ of error from this court, the judgment of the hustings court sustaining the demurrer was reversed, and the case remanded. Atlantic Coast Realty Co. v. Townsend, 124 Va. 490, 98 S. E. 684. At the trial on the merits, the plaintiff demurred to the defendant's evidence, and the hustings court rendered judgment thereon in favor of the plaintiff, and to that judgment the writ of error in this case was awarded.

The alleged contract and the negotiations leading up thereto were made and conducted solely by W. E. Burke as contracting agent on behalf of the Atlantic Coast Realty Company, which was engaged in the real estate brokerage business, and Wirt Robertson. No one else was present when the negotiations were conducted, or when the verbal contract is alleged to have been made.

Shortly after the controversy arose, Robertson, being conscious that he was in poor health and would probably live but a short time, at the suggestion of his counsel made a full statement in writing of the whole matter now in controversy, and at a later date filed a bill, sworn to, in the District Court of the United States at Richmond, to perpetuate his testimony, but died before his testimony could be taken.

The plaintiff introduced but one witness, the said W. E. Burke. After he had testified and the plaintiff's counsel announced that they had no further evidence to offer, counsel for the defendant moved to strike out his testimony because it was not corroborated, but the motion was overruled. The defendant's counsel then offered in evidence the written statement aforesaid of Robertson, and also a duly certified copy of the bill to perpetuate his testimony aforesaid, but upon objection by the plaintiff both were excluded. Exceptions were duly taken to the ruling of the trial court in each instance. The motion to strike and also the offer in evidence of the statement and the bill were founded on section 6209 of the Code, which defendant's counsel claimed was applicable to the case. At the time the contract is alleged to have been made Burke owned 10 shares of the stock of the plaintiff company, but at the time he testified he owned no stock in the company, was not an officer thereof, and had no pecuniary interest in the subject of litigation, though he was still an agent of the company.

The above adverse rulings of the trial court constitute the first and second assignments of error, but they will be considered together.

Section 6209 is as follows:

"In an action or a suit by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony; and in any such action or suit, if such adverse party testifies, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence."

The revisors' note to this section is in part as follows:

"This section is new; and sections 3346, 3347, 3348 and 3349 of the Code of 1887 have been omitted and thereby repealed. The present Code makes material changes in the law governing the competency of witnesses to testify. The following excerpt is taken from the Report of the Revisors made to the General Assembly at its session of 1918:

" 'The subject of the competency of witnesses to testify was one that received very careful consideration by the revisors. Nearly all of the difficulties that have arisen in practice have grown out of the exceptions to the rule that interest should not disqualify a witness. In the draft submitted the revisors have removed practically all disqualifications except to protect confidential communications, especially between husband and wife. In order to meet the difficulties that may arise in consequence of a removal of disqualifications, the revisors have added a new section declaring.' (See section 6209 above.) 'It was believed that this section, together with the great safeguard of cross-examination, would be ample protection for the estates of persons laboring under disability or who are incapable of testifying.' In the business affairs of life all evidence bearing upon the question at issue is received and considered by the business world, and it seemed proper that the same rule should obtain in courts of justice which are enforcing rights arising out of such business transactions.'

"Section 3345 of the Code of 1887 (section 6208 of this Code unchanged) removed common-law disqualifications on account of interest or because a party. The exceptions referred to in the above excerpt were imposed by section 3346 of the Code of 1887, for the most part, which exceptions were in turn qualified by sections 3347, 3348 and 3349 of that Code. The principal exception and the one which was most fruitful of litigation was that pertaining to the survivor of a transaction. Most of the states still retain this exception, but in at least two states other than Virginia it has been abolished. (New Mexico and Connecticut.) The objections to the principle of the survivor of a transaction rule cannot be set forth in a note of this character, but they will be found well and ably discussed by Mr. Wigmore, a distinguished authority, in his work on Evidence (1 Wig. Ev. § 578). The objections to the rule in actual operation are best illustrated by the numerous cases which arose under the former law, some of which were of such a character as to call for amendment of the sections by which they were governed."

The statute of New Mexico (Code 1915, § 2175) on this subject had been in force for some years prior to the adoption of our statute, and is as follows:

"In a suit by or against the heirs, executors, administrators or assigns 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 a deceased person, unless such evidence is corroborated by some other material evidence."

The similarity of the two statutes, taken in connection with the note of the revisors, indicates that the Virginia statute was taken from that of New Mexico, though the Virginia statute is much more comprehensive, as it applies to the representative of any person who, from any cause, is incapable of testifying, while the statute of New Mexico is limited to the representative of a "deceased person." There are also other differences in the language of the two statutes; for example, the New Mexico statute requires corroboration of "an opposite or interested party to the suit, " while the Virginia statute requires it of "an adverse or interested party." The statutes also differ in their use of the words "evidence" and "testimony."

Prior to the adoption of the Code of 1919, there had been several decisions of the territorial court of New Mexico on the subject of the sufficiency of the corroboration when necessary (Byerts v. Robinson, 9 N. M. 427, 54 Pac. 932; Gillett v. Charez, 12 N. M. 353, 78 Pac. 68), but none on the subject of the circumstances under which corroboration was necessary, nor have we been cited to any case since the territory became a state, except National Rubber Co. v. Oleson, 20 N. M. 624, 151 Pac. 695, decided July 8, 1915, reheard September 8, 1915. In that case suit was brought by a corporation on a contract made through its agent for the sale of bicycle tires. The agent offered to prove the terms of the contract was an officer of the corporation and its representative in making the contract sued on, and it was conceded by counsel for the corporation that he needed corroboration. The court decided nothing on the subject of the necessity for corroboration, but, acting on the concession, held that the corroboration was not sufficient.

In Union Land & Grazing Co. v. Arce, 21 N. M. 115, 152 Pac. 1143 (decided November 1, 1915), it was plain, and in fact undisputed that corroboration was necessary, and the only question before the court was the sufficiency of the corroboration.

Neither of these cases can be accepted as an interpretation of the New Mexico statute as to when corroboration is necessary, and when we look to the original notes of the revisors and the minutes of their proceedings on file with the clerk of the...