Savard v. Herbert

• Decision Date: 14 March 1892
• Citation: 1 Colo.App. 445,29 P. 461
• Parties: SAVARD v. HERBERT.
• Court: Colorado Court of Appeals

29 P. 461

1 Colo.App. 445

SAVARD v. HERBERT.

Court of Appeals of Colorado

March 14, 1892

Appeal from district court, Arapahoe county; DAVID B. GRAHAM, Judge.

Action on a contract by J C. Herbert against John Savard, as survivor of Roy & Savard, copartners. Plaintiff had judgment and defendant appeals. Affirmed.

H.C Charpiot and W.N. Maguire, for appellant.

E.W Waybright, for appellee.

RICHMOND P.J.

This action was instituted by J.C. Herbert, plaintiff below against Joseph Roy and John Savard, copartners as Roy & Savard. Prior to the rendition of judgment Joseph Roy died, and John Savard defended the suit for himself and as trustee of the heirs at law and of the administratrix of the estate of Joseph Roy. The complaint alleges that on May 22, 1889, plaintiff made a contract with the defendants Roy & Savard to act as their agent in the sale of stone, for which he was to receive as his compensation 10 per cent. of all stone sold or procured to be sold by him south of Castle Rock, in the state of Colorado. Plaintiff asks for judgment in the sum of $450. Answer was filed, admitting the copartnership, and the employment of the plaintiff by the defendant, and specifically denying each and every other allegation in the complaint; and further alleges that there was a settlement of accounts between the parties, at which time there was found due to plaintiff the sum of $54.33, which sum was paid to the attorney of plaintiff, and accepted in full satisfaction of all claims and demands against the defendants. The cause was tried to a jury, and resulted in a judgment in favor of the plaintiff for the sum of $203.18. Motion for a new trial was overruled, and judgment entered upon the verdict, to reverse which judgment this appeal is prosecuted.

During the trial of the cause the plaintiff was permitted to testify to the contract entered into between him and the firm when both members of the firm were present. It is contended that this testimony was inadmissible, for the reason that John Savard was defending not only as the surviving partner of the firm of Roy & Savard, but also as trustee of the heirs at law and the administratrix of the estate of said Joseph Roy, and consequently any testimony relative to conversations tending to establish a contract wherein Roy was a party was inadmissible under the provisions of the statute. The sections of the statute referred to read as follows: Section 3641, Gen.St., p. 1060: "That no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot lunatic, or distracted person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending." Section 3643: "That in any action, suit, or proceeding by or against any surviving partner or partners, joint contractor or contractors, no adverse party or person adversely interested in the event thereof shall, by virtue of section one of this act, be rendered a competent witness to testify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission...