Stevens v. Moulton

• Decision Date: 15 July 1895
• Citation: 38 A. 732,68 N.H. 254
• Parties: STEVENS et al. v. MOULTON.
• Court: New Hampshire Supreme Court

38 A. 732

68 N.H. 254

STEVENS et al.

v. MOULTON.

Supreme Court of New Hampshire. Grafton.

July 15, 1895.

Exceptions from Grafton county.

Action in assumpsit by M. M. Stevens and C. G. Smith, administrators of the estate of W. H. Cummings, deceased, against Andrew W. Moulton. Facts found by a referee. Mr. Stevens, one of the plaintiffs, was sworn as a witness, at their request, without reservation, qualification, or limitation in respect to his testimony. He produced and identified Cummings' account books, and testified that the entries upon them against the defendant relating to the items in suit were in Cummings' handwriting, and had not been changed since the books came into the possession of the witness, in 1891. Upon cross-examination, he testified that he understood the entries were made from a mill book kept by the miller; that he had thoroughly examined Cummings' papers, and had not found an order drawn by Cummings upon his miller in favor of the defendant; and that the defendant, after looking the account over, had said it was all right, but that Cummings owed him. The defendant was sworn as a witness in his own behalf, and, subject to the plaintiffs' exception, testified that he omitted to enter a lien suit brought by him against one Sherman, in consideration of Cummings' promise to pay him the amount of the claim and costs; that, in fulfillment of this promise, Cummings subsequently gave his miller an order to deliver the grain mentioned in the plaintiffs' specification to the defendant, and that the grain was not sufficient to pay the sum due the defendant by virtue of the promise. The referee's finding was in favor of the defendant, if the defendant's testimony was taken into consideration, and in favor of the plaintiffs if it was not. Judgment was ordered upon the report in favor of the plaintiffs, subject to the defendant's exception. Exception overruled.

G. F. Morris, for plaintiffs.

Smith & Sloane, for defendant.

CHASE, J. The statute removing the disqualification of witnesses by reason of their interest in the event of the suit (Laws 1857, c. 1952; Laws 1858, c. 2090; Laws 1865, c. 4074; Gen. St. c. 209, §§ 13-17; Gen. Laws, c. 228, §§ 13-17; Laws 1889, c. 74; Pub. St. c. 224, §§ 13-17) was designed "to enlarge, and not contract, the field of testimony." Accordingly it has been uniformly held that the exception in it providing that a party to an action shall not testify if the adverse party is an administrator or the guardian of an insane person, unless the administrator or guardian elects to testify, does not exclude a party from testifying concerning facts about which he was at liberty to testify at common law under the same circumstances. Moore v. Taylor, 44 N. H. 370, 374; Page v. Whidden, 59 N. H. 507, 511; Peirce v. Burroughs, Id. 512; Sheehan v. Hennessey, 65 N. H. 101, 102, 18 Atl. 652. Before the passage of the statute, entries upon the book of account of a deceased party, supported by the suppletory oath of his administrator, were competent evidence in an action between the administrator and the surviving party, if they related to the main issue on trial. The suppletory oath required the witness to make true answers to the questions propounded and the questions related to the identity of the book and the handwriting of the entries upon it. To this extent the administrator had the right to testify. Dodge v. Morse, 3 N. H. 232. This right was not affected by the exception in the statute, although its terms may be broad enough to include it. Bailey v. Harvey, 60 N. H. 152, 155; Sheehan v. Hennessey, 65 N. H. 101, 18 Atl. 652; Lassone v. Railroad Co., 66 N. H. 345, 352, 24 Atl. 902. Whenever an administrator testifies in this way, he exercises a common-law right, and consequently makes no election under the statute. From 1865 to 1889 the statute, so far as it related to a question like that under consideration, was in these words: "Neither party shall testify in a case where the adverse party is an * * * administrator * * * unless the * * * administrator * * * elects to testify." Laws 1865, c. 4074; Gen. Laws, c. 228, § 16. The construction given to this provision was that, whenever an administrator elected "to testify for any purpose or to any extent whatever," the adverse party might testify generally and without restriction. Ballou v. Tilton, 52 N. H. 605; Dow v. Merrill, 65 N. H. 107, 18...