Franklin v. Pinkney

18 Abb. Pr. 186, 2 Rob. 429

Opinion

By the Court.

Footnotes

•

*—Robertson, Ch. J.

The 399th section of the Code, which confers on parties to actions generally the right of testifying on their own behalf, excepts therefrom, in actions of a certain kind, against certain parties, as the representatives or successors of others, occurrences of a certain nature.

Such representatives or successors are enumerated as the “ executors, administrators, heirs-at-law, next of kin, or assignees of a deceased person.” The actions are described as those-where the persons sued have acquired title to the cause of ac tion immediately from such deceased person, or have been sued as such representatives or successors, and the occurences are described as “ transactions or communications bad personally” by the party offered as a witness on his own behalf with such deceased person. The only question presented on this appeal turns on the meaning of the phrase “ transactions or communications personally.”

The object of this exception was plainly to exclude a party to a transaction from testifying in an action brought upon it to anything which occurred at it, in case the other party thereto, whose representatives were sought to be charged in such action, had died since the occurrence of such transaction, and as clearly was not designed to exclude the testimony of a living party as to an occurrence at which the deceased needed not to have been present, or a fact which he needed not to have known, in order to make evidence of it admissible. It requires the transactions or communications which it excludes to have been personal between the living and deceased party. Nothing, of course, can well be personal unless the parties individually are present when it occurs. Of course this section assumes that transactions may occur without a communication, which latter means, undoubtedly, words either spoken or written, although after-wards the term conversation alone is used in the same section. Acts may be done, such as the delivery of an article, which may most materially affect the rights of a party, although not a word may be said by either party. This section, of course, could not have been intended simply to exclude the testimony of a party as to his own acts, and yet allow him to testify where he was present at an occurrence between an agent of his and a deceased person, by which the latter was sought to be bound.

The word “ transaction” in this provision was never intended to embrace all the occurrences which go to make up a cause of action; in other words, every thing material in an action; otherwise a different form of expression would have been used. For that purpose it would have expressly excluded either party from testfying at all, as to any thing where the other party was dead.

There may be numberless occurrences, or facts, necessary to be established in every action, in regard to which one of the parties may know nothing, and yet it would be unreasonable and nnjnst, that by his death his antagonist should be deprived of the right of testifying in relation thereto.

The ownership of the money deposited by the plaintiff in the bank of the decedent represented by the defendants, was in no sense a transaction or communication between them personally, since it did not appear that such decedent knew any thing about it.

It is true it might have appeared on cross-examination that snch ownership was claimed exclusively by virtue of something which passed between the plaintiff and such decedent personally, and then its exclusion would have been proper. The fact of deposit was sustained by other evidence, but to whom the money belonged before it was so deposited was a material subject of inquiry, whether the learned referee was right or wrong in his view, that the presumption of law is, that the delivery by one man of money belonging to him to another, or its deposit by him to the credit of the latter, is intended to be mere payment of a debt

It is very clear, unless it was the plaintiff’s money when he deposited it, he could not well recover for it in this action. According to the referee’s view, even if he had proved that fact, something more was necessary to be established, some understanding between the parties that all moneys so deposited should be considered as a loan, repayable on demand. To that, of course, the plaintiff could not be allowed to, testify, if entered into in person between himself and the deceased.

How far the referee would have been justified, in holding upon the evidence admitted by-him even with the addition of that excluded, in finding in favor of the plaintiff is not now in question. He excluded pertinent evidence not within the prohibition of the statute, and for that error the judgment must be reversed, and a new trial had, with costs to abide the event.

Present, Robertson, Ch. J., Monell and Garvin, JJ.