Scroggin v. Holland

• Decision Date: 31 July 1852
• Citation: 16 Mo. 419
• Parties: SCROGGIN AND SMITH, Plaintiffs in Error, v. HOLLAND, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 419

SCROGGIN AND SMITH, Plaintiffs in Error,

v.HOLLAND, Defendant in Error.

Supreme Court of Missouri.

July Term, 1852.

1. A widow is a competent witness for the interest of her deceased husband's estate.

2. In a suit against the securities on a note given for the price of a slave, a breach of the warranty of soundness may be set up by them in defense, though the warranty was to the principal alone, who is not joined.

Error to Pettis Circuit Court.

The facts are sufficiently stated in the opinion of the court.

Hayden, for plaintiffs in error.

I. The widow Brown was a competent witness to prove the unsoundness of the slave, because:

1. She was not interested in the event of the suit; she had received all her dower interest in the estate, and it was wholly insolvent. 2. She was competent, even though interested, and so would her husband have been, under the provisions of the practice act of 1849, had he been alive. See article 25, secs. 1, 2 and 3 of the Code; 4 Mo. Rep. 361; Patterson v. McClanahan, 13 Mo. 507. 3. The facts were such as she acquired a knowledge of, through the medium of her own senses, and not from her husband, and, therefore, the rule which renders a wife incompetent to testify as to the conversation or confidential communications of the husband, does not apply. 7 Vermont, Rep. 503-7; 13 Pickering, 445; 11 Mass. 285; 3 Binney, 366; 3 Phillips' Ev. 1555; 1 Strange Rep. 504; 6 East, 194; 1 Greenleaf Ev., secs. 253, 254, 338; 2 Strange, 504.

II. The court erred in permitting the plaintiff to prove that he offered to purchase the slave of Brown, after he had sold him to Brown, and that Brown declined to sell. Brown was under no obligation to sell. He had a perfect right to retain the slave, and rely upon the warranty for his indemnity. His declining to sell did not tend to prove that the slave was sound at that time, or at the time of the purchase. Neither did the declarations of Brown, several months after his purchase, that he could sell the negroes for some $500 or $800 more than he gave Holland for them, tend to show that the slave, Harris, was sound. Brown might have got the slaves for less than the usual price, or they might have risen in value, or some one might have been willing to have given more than their worth in order to own them. Brown had a right to the full benefit of his purchase.

III. The position assumed by the defendant in error, in this court, that the Circuit Court did not err in excluding the widow Brown as a witness, because the plaintiffs in error had not laid any foundation for the introduction of the proof they proposed to make by her, is not true in fact or in law. The foundation was laid in the answer, which states that the note sued on was given to secure the price of certain slaves warranted to be sound, and that one of the slaves was unsound, and died of that unsoundness. The defendants proposed to prove this unsoundness by the widow. If she was a competent witness, they had a right to prove by her any link in their chain of testimony, and when she was excluded, it was not necessary for them to complete their proof. They could submit to a verdict against them, and appeal, and have this error corrected.

Adams and Wright, for defendant in error.

I. No foundation was laid by the plaintiffs in error, in the court below, for any evidence about the warranty of the soundness of the slaves purchased of the defendant in error by Brown. There is nothing in the record to show, and there was no proof below, that the note sued on was given for the slaves. The note was given January 20th, 1850, payable twelve months after date, and the bill of sale was executed February 1st, 1850, and the consideration is expressed to be in hand paid. It is, therefore, immaterial what the ruling of the court below was upon the point saved in the bill of exceptions.

II. Even if there was any thing to show that the note was given for the slaves, the defense of unsoundness, set up by the plaintiffs in error, was inadmissible. The warranty was not only made long after the note was given, but it was made to Brown, and not to the plaintiffs in error. He alone could have maintained an action for the breach of the covenant; and the plaintiffs in error could not deprive him of his right of action on the covenant, by setting up the breach in this case as a failure of consideration.

III. The widow of Brown was an incompetent witness, not only on the ground of her husband's interest, but upon the ground of public policy, which renders the husband or wife incompetent to testify to any thing that occurred during the coverture.

IV. Brown's statements, that he could sell the slaves for $500 or $800 more than he had paid for them, and his refusal to let the defendant in error re-purchase the slave, Harris, are strong evidence that the slave was sound at the time of the sale. But if such evidence did not conduce to prove the slaves sound, in no view of the case could its introduction do the plaintiffs in error any harm.

Napton, for same.

I. The husband of Mrs. Brown, if alive, would not have been a competent witness, since he was not merely substantially a party, but the principal party defending the suit. He purchased the negroes, gave his note, with Smith and Scroggin as securities, and it is for his benefit the defense of unsoundness is set up. The condition of his pecuniary affairs, at the time of the suit, does not affect the question. The new practice act has not changed the law in this respect, as secs. 2, 3 and 4, of art. 25, of that act show. The general principles of public policy and sound morality establish that it ought not to be changed.

II. If Brown was not a competent witness, then his wife was not, notwithstanding the dissolution of the marriage by death or divorce. The exclusion of a wife, in such cases, is based upon great principles of public policy, and the new practice act, although abolishing all incompetency arising from mere pecuniary interest, did not and was not intended to abolish this ancient rule of evidence. The text books are full of authorities on this subject. No case can be found in which a wife has been permitted to testify for her husband (dead or alive), where he was a substantial party to the transaction. The case of Beveridge v. Minter, 1 Carr. and Payne, 364, is a nisi prius decision, directly contradicted by Doker v. Haster, Ry. & Moo. 198, and by the general current of authorities; but, if it were the law, it does not touch this case. The wife in that case was called upon to prove the liability of her dead husband, not to exonerate, and the Chief Justice, putting the whole matter on the ground of interest, let her testify. It is manifest the same judge would have excluded Mrs. Brown in this case.

Scott, Judge, delivered the opinion of the court.

This was an action on a note for thirteen hundred dollars against Smith and Scroggin, securities of James Brown. Brown purchased several slaves of Thomas Holland, the plaintiff, who warranted them to be sound. The note in suit was executed to secure, as it was alleged, part of the purchase money, a portion of it having been paid down, and bore date ten days prior to the bill of sale. The alleged unsoundness of one of the slaves, estimated to be worth seven hundred dollars, was the defense to the action. Brown afterwards died. On the trial, the warranty of the soundness of the slaves contained in the bill of sale was read, and some evidence, conducing to show the unsoundness of...