First National Bank v. Cornell

41 Ohio St. (N.S.) 401

Opinion

By the Court.

After objection made by the bank, the trial court allowed the plaintiffs to testify to an oral contract for a deposit, and interest thereon, made by them at the bank, in business hours, with the defendant’s cashier, who died before the trial.

Held: Sections 5241 and 5242, Rev. Stats., enumerate as the classes of persons whose death shall affect the competency of others as witnesses, parties, assignors, executors, administrators, guardians, trustees, heirs, devisees, legatees, partners and joint contractors. All these are principals. The omission of agents, a class whose members equal, if they do not exceed, all the others combined, was evidently intentional. To so construe the last clause of paragraph 8, sec. 5242, as to add agents to said enumerated classes, would be judicial legislation. Cochran v. Almack, 39 Ohio St., 314, and Steinberger v. Hanna, 42 Id., 305, approved and followed.

Judgment affirmed.