Daniel v. Bradford , 132 Ala. 262 ( 1902 )

DOWDELL, J.

— The appellant, Mrs. Bessie L. Daniel, brought suit to recover of H. S. Bradford, the sum of $300, and from a verdict and judgment in favor of the defendant Brandford this appeal is taken. The complaint contained two counts, one claiming the sum named as a loan made to the defendant on October 5, 1897, and the other claiming said sum as money had and received by defendant to the use of plaintiff on said date.

The court erred in overruling plaintiff’s objection to the question asked defendant, while testifying in his own behalf, as to what Will Daniel said to him when he brought him the check for the three hundred dollars, and in allowing witness to testify against plaintiff’s objection as to any statement made by said Daniel with regard to the transaction. This testimony was not admissible under section 1794 of the Code of 1896, which prohibits a party having a pecuniary interest in the result of the suit from testifying as to any statement by or transaction with a deceased person who, “at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced.” The evidence thus sought to be introduced was a statement by one W. J. Daniel, who was dead, and who was plaintiff’s agent and represented her in making the alleged loan to Bradford. Bradford having a pecuniary interest in the result of the suit, opposed to that of Mrs. Daniel, cannot be heard to testify as to the statement made by her deceased agent, such testimony falling clearly within the inhibition of the statute. Code of 1896, § 1794; McCrary v. Rash, 60 Ala. 376; Warten v. Strane, 82 Ala. 313; Bank v. McDonnell, 87 Ala. 740.

Charge No. 2, given at the request of the appellee, may have been misleading in its tendency, but the appellant having had the opportunity of requesting an explanatory charge, cannot complain of the same as reversible error. ,

The remaining assignments of error not being insisted upon in argument, will not be considered.

For the error pointed out, the judgment of the court below will be reversed and the cause remanded.