Murray v. Cone

26 Iowa 276

• Court: Supreme Court of Iowa
• Decided: December 18, 1868
• Status: Published

Opinion

Dillon, Ch. J.

Evidence: declarations: res gestae. — It became material for the plaintiff to prove the purchase by him of the cattle from Richard Murray, and also that this purchase was bona fide. To establish the bona fides of the purchase he claimed to have had a note of Richard’s, which had been given in settlement of a board bill against him. By admitting his wife, after the alleged contract of purchase was made and in the absence of Richard, to give evidence of the plaintiff’s own declarations to prove both the fact of purchase and the consideration on which it was based, the plaintiff was clearly allowed to manufacture testimony in his own behalf. Evidence of the contract and what was said at tbe time and in relation thereto would, of course, be competent. But the plaintiff’s declarations on this subject, made to his wife, at a period distinctly subsequent to the contract, are no part of the res gestae and should have been rejected. They were his own narration of a past occurrence.

The court erred in allowing the testimony to be received and in not giving the instruction in relation thereto asked by the defendant. Taylor v. Lusk, 9 Iowa, 444; Ross v. Hayne, 3 G. Greene, 211; West v. Price's Heirs, 2 J. J. Marsh. 380; Blake v. Graves, 18 Iowa, 312; Miners v. Sturdevant, 23 Ala. 661; Thompson v. Mawhinney, 17 id. 362; 3 Phil. Ev. (3d ed.) 337, n. 213.

The case does not fall within those referred to by the appellee’s counsel, in which the declarations of a person in possession of personal property, simply explanatory of the possession, have been held competent evidence.

Keversed.