English v. Porter , 63 N.H. 206 ( 1884 )

That the plaintiff could not make himself a competent witness by his own testimony, and that, in ordinary cases coming within the statute exception (G. L., c. 228, s. 16), the living party cannot testify to transactions known only to himself and the deceased, are propositions established by repeated decisions of this court. And upon the question of injustice we find nothing in the reported facts which distinguishes this case from the numerous other cases in which the living party has been excluded as a witness.

But it has been argued at great length, and with much ability, that the exclusion does not apply in matters of account. We do not assent to this proposition; and besides, Moore v. Taylor, 44 N.H. 370, and Fosgate v. Thompson, 54 N.H. 455, are authorities to the contrary. But if the proposition were true, and it be conceded that the rights of the parties are to be governed by the rules once applicable to the obsolete common-law action of account, it does not aid the plaintiff, because, in matters of accounting at common law, in the language of Allen, J., in Page v. Whidden,59 N.H. 511, "The admission of a party to testify was not a matter of right in any case, but within the discretion of the court; and when the discretion was exercised by masters in chancery in equity proceedings, the discretion was subject to revision by the chancellor. The practice of allowing parties to be examined and to testify for themselves was resorted to with great caution, and never unless, under the peculiar circumstances of the case, justice could not be attained without it. It was permitted in no case where from the position of the parties an unfair advantage would be given by it to one party over the other (3 Gr. Ev. 338); and when the fact in question occurred in the presence only of the plaintiff and a deceased partner of the defendant, the examination of the parties was held improper as calculated to give the plaintiff an unfair advantage." Therefore, if the common-law exception in matters of accounting is applicable, there was no error in the ruling at the trial term that the plaintiff was not a competent witness.

It has been further contended, that partners are each the agent of the other, and therefore that an arrangement entered into with one partner about the firm business must be considered as an arrangement with the others, and that consequently the statute does not apply, because the claims here on both sides being partnership claims, the plaintiff is the real party on one side, and the Pushee firm, and not an individual member of it, on the other, and "so the case stands just as it would if the plaintiff had sued the firm prior to the death of any member, and the deceased Pushee had died as he did, and his administrator had come in as he did and sought to defend the suit, first, by setting up matters in defence, and second, by instituting a suit in favor of the firm against the plaintiff by the statutory action known as set-off;" and that to exclude the plaintiff as a witness the whole firm must be dead.

Concede the argument to be sound, the conclusion does not follow. The sole design of the statute was to place parties to suits upon equal footing. Moore v. Taylor, 44 N.H. 375, and numerous subsequent decisions. Hence it is held, that although excluded by the literal terms of the statute, the living party may testify to matters not known to the deceased, because in such a case there is nothing unequal or unjust in allowing the survivor to testify; and for the same reason it is held that he may not testify where the deceased had personal knowledge of such matters. Tested by the standard of equality (and no other can be allowed), the plaintiff was not a competent witness as to the disputed note concerning which the deceased must have had full knowledge, and might, if living, have been a witness, for it would be unequal and unjust to permit the plaintiff to give his version of the transaction when the lips of the only other party having knowledge of it are closed in death. And we do not see why the controlling principle of equality is altered by the fact that the transaction was between the plaintiff and the Pushee firm. The only member of that firm having cognizance of the matter being dead, the case comes within the terms of the statute, and we think it comes within its spirit also; for to allow the plaintiff to give his account of the vital fact in issue, without the possibility of contradiction, would reverse the uniform construction heretofore given to the statute, and let in the very evils against which the legislature intended to guard.

The same conclusion follows if a narrower and technical construction be given. The phrase "neither party shall testify," c., may be fairly held to mean the legal party to the action. In fact, this is the common meaning of party in legal instruments and proceedings. In this view, the plaintiff's action cannot be regarded as one against the firm. His case is an appeal from the decision of the commissioner on the estate of the deceased Pushee, disallowing his claim against that estate alone. The plaintiff is one party, and the administrator, representing the heirs and creditors of the deceased, is the other party. No other parties appear on the record, and no others are before the court, or will be affected by the result. Should the surviving partner be sued hereafter by the plaintiff for the items claimed here, the judgment in this proceeding would not even be evidence against him. Legally, therefore, the administrator is to be regarded as the sole defendant, and the case stands as it would if the matters in dispute were based upon the individual contract of the deceased with the plaintiff.

The remaining exception to the disallowance by the referee of the items for pasturing requires but brief consideration. It is sufficient to say, that on the reported facts the law does not imply a promise to pay for the pasturing (Bank v. Getchell, 59 N.H. 281, 285), and therefore, the only question raised being one of fact, the exception will not be considered at the law term. Fuller v. Bailey, 58 N.H. 72, 71; Lefavor v. Smith, ib. 125.

Exceptions overruled.

SMITH and CARPENTER, JJ., did not sit: the others concurred.