Williams v. Baldwin , 7 Vt. 503 ( 1835 )

The opinion of the court was delivered by

Royce, J.

It is contended that proof of the contents of the plaintiff’s letter to Russell ought not to have been admitted, without a previous search for the letter amongst the papers of the defendant. But it being described asa family letter...arj.d ..barki;1' been seen in Russell s possession long after the payment to him by ,,,,, , . . . r , , the defendant, there is no ground to suppose it ever left in the defendant’s hands.

And we think it contained a sufficient authority to Russell to receive payment of the note as agent of the plaintiff. It was not ■a call for payment made by the plaintiff as a creditor, on Russell as a debtor, but was an express authority to obtain the money of the defendant for the plaintiff. There was, indeed, a further request, that the money should be transmitted to the plaintiff; but this direction was not addressed to the defendant, nor should he be holden to see it complied with. The fact that Russell had signed the note with the defendant as a surety is not at.all inconsistent with this construction. As between the two it was the sole debt of the defendant, and it was clearly competent for the plaintiff to treat with Russell as an agent or debtor, at her election.

A more important question concerns the competency of the witness by whom the reception of the letter by Russell, and its contents, were proved. At the time to which her testimony referred she was the wife of Russell, a co-signer with the defendant of the-note in question. It was very properly conceded by the plaintiff’s counsel, that she had no pecuniary interest to be affected; but it was urged that she ought to have been excluded under the rule of evidence which prohibits husband and wife from testifying against each other, and which prevails to a certain extent after the marriage relation has been terminated by divorce, or by the death of one party. This rule is too important to the peace and confidence of married life to be disturbed, but we think it was not applicable in the present instance. The witness was not called to disclose communications made by her late husband, but to state independent and distinct facts; the possession by him of the plaintiff’s letter, and the contents of that- letter-, as- ascertained from inspection by the witness herself.

There is another ground on which the witness would seem to be -clearly admissible. According to the law of evidence in England, at least since the act of 46 Geo. III. ch. 37, the husband, in his life-time, if not made a party, might have been called and compelled to testify in support of this defence ; as his testimony would have only tended to charge himself with a pecuniary demand or civil liability. And the same rule was, in effect, laid down by the present Chief Justice, in deciding the case of Warner vs. M'Garey, 4 Vt. Rep. 507. That the wife is equally competent under like-circumstances has been repeatedly determined. And if this witness would have been received during the life of her husband, to prove the facts in question, she was certainly admissible after-wards, though her testimony should have tended to charge his estate with this demand. But we have no occasion at present to go this length. The rule of exclusion on which the plaintiff relies is mainly a rule of policy, and has never to my recollection been applied, except in cases to which the husband or wife was a party, or where the estate of either was to be directly affected. But when the question arises collaterally, as in suits between third persons, it then becomes solely a question of interest. And whether Russell had, or had not, such an interest during his life as would have shielded him, and consequently his wife, from disclosing facts which might charge him in another suit, it is obvious that no such interest existed when the widow was called to testify. The estate of Russell was insolvent, and had been settled previous to the trial. There was therefore no subsisting interest of her husband or his estate, which on any ground could operate to exclude the witness. The decision of the county court admitting this witness, and on the effect of the testimony, is affirmed.