Beadle v. Graham's Adm'r , 66 Ala. 99 ( 1880 )

SOMERYILLE, J.

There was no error in excluding the testimony of the appellant, by which it was proposed to prove that Thomas Graham, who was the intestate of appellee, during his life-time, sued appellant before a justice of the peace, for the same subject-matter here in litigation; that the ease was tried, and the justice adjudged that Graham was not entitled to recover. The appellant was not a competent witness under the statute. He was a party defendant to the suit, and the case involved a direct, immediate conflict, between his own rights and those of the estate of Graham, who wa.s then deceased. The matter proposed to be established by his testimony was a “ transaction ” with the deceased, within the meaning of section 3058- of the present Code (1876). It was not only a transaction, but it was a controversy, which is included in the very soul and spirit of the statutory prohibition. To testify that this controversy was judicially determined, by the authority of a justice of the peace, and in his presence, carries with it necessarily the further averment, • that the deceased was a party to the suit, made so by such service or voluntary appearance in court as to conclude his legal rights; that the two suits were identical, and that the judgment rendered was on the merits of the case.

2. The loss of the papers in the justice’s court having been satisfactorily established, these matters were open to parol evidence. A cross-examination of the witness, moreover, may have disclosed the fact that the case was discontinued, or that the plaintiff took a non-suit, or there may have Leen no judgment on the specific matter in issue; in either of which events, the proceedings would not have been conclusive. — 1 Greenl. Ev. § 529; Ala. Gold Life Ins. v. Sledge, 62 Ala. 566.

3. The special contract, or agreement, between the plaintiff’s intestate, Graham, and the defendant, Beadle, made in 1862, was properly admitted in evidence under the common counts. There was no need of another count, declaring specially on this agreement. The rule in such cases is, that so long as a contract continues executory, the plaintiff is required to declare specially; but, when it has been executed on his part, and no duty remains but the payment of the price in money by the defendant, a recovery may be had under the common counts.—2 Greenl. Ev. § 104; Holbrook v. Dow, 1 Allen, 397.

_ The judgment is affirmed.

Brickell, C. J. not sitting.