Walker v. Taylor , 43 Vt. 612 ( 1871 )

The opinion of the court was delivered by

Wheeler, J.

Upon the trial of this case- in the county court the question to be determined was, whether the defendant had received money to the use of, and which he had undertaken to pay to Guy B. Walker, the plaintiff’s intestate, or not.

When the plaintiff had proved and put in evidence the power of attorney, or order, executed by the intestate to the defendant, which authorized the defendant to receive of the selectmen of Rockingham five hundred dollars expressed to be due to the intestate from the town of Rockingham, and had proved and put in evidence the receipt executed by the defendant to the selectmen of the town of Rockingham, by which he acknowledged that he had received of them five hundred dollars due the intestate from the town of Rockingham, in pursuance of the order or power of attorney, he had shown, prima facie, that the defendant had received five hundred dollars to the use of the intestate, under such circumstances that the law would imply an undertaking on the part of the defendant to pay over the money so received on request. The defendant, in making defense, sought to meet and overthrow this implied contract by denying some, and explaining away others, of the circumstances from which the law would imply it. Neither the contract between the defendant and Rockingham, nor the one between him and Cross & Abbott, nor both of them together, could affect the rights of the intestate to the bounty for his enlistment, unless he knew of, and agreed to, so much of them as related to his enlistment and to his bounty for it. Such evidence as would be competent to show these contracts would not be admissible at all to affect the plaintiff’s right of recovery in this case, unless accompanied by evidence that the intestate knew of them and agreed to be one of the men that Cross & Abbott were to furnish the defendant, to apply on'his contract with Rockingham, and agreed to accept what Cross & Abbott paid, or agreed to pay him, in lieu of what he would otherwise have been entitled to. under that enlistment. The proof of all these things together would be admissible and proper to be considered in determining the plaintiff’s right to recover upon the implied contract of the defendant, only because it would show that the intestate acted upon, and was to receive his bounty by way of, an express contract with Cross & Abbott, instead of an implied contract with the defendant, and in that way disprove the implied contract which the plaintiff’s evidence had, prima fade, proved. The implied contract would then be the contract in issue in the case. The other contracts would be in dispute collaterally only, to be considered and to have just weight given to them, if proved, in determining the facts which would raise the implied contract. For aught that appears, the other contracts made by the defendant, and the one made by the intestate with Cross <& Abbott, if he made any with them, were made with persons living and competent to testify, and if either of them was the contract in issue, the defendant would be a competent witness. But the implied contract, and not either of the others, was the contract in issue, and the defendant did not make that contract with any person living and competent to testify upon the trial in the county court. Counsel for the defendant insist that, because the testimony of the intestate given upon the trial before the justice was put in evidence upon the trial in the county court, the defendant was a competent witness in the case in his own favor. The bill of exceptions does not expressly state which party put the former testimony of the intestate in evidence in the case, but from the order in which the case is stated, the inference is that the defendant did. Whether, if the plaintiff had done so, the defendant would have been a competent witness in his own favor upon the same subjects about which the intestate had testified in the testimony put in evidence, is not now decided. But the defendant could prove the former testimony of the intestate as an .admission made by the intestate against himself, if he chose to do so, and the plaintiff could not have the testimony of the intestate to deny or explain the admission, and it is considered now that such proof of the former testimony of the intestate could have no effect upon the competency of the defendant. -The statute is plain to the effect that when an administrator is a party, the other party shall not be admitted to testify in his own favor unless the contract in issue was made, originally, with a person who is living and competent to testify. The plaintiff is an administrator, the contract in issue was not made with a party living and competent to testify, and therefore the admission of the defendant to testify in his own favor is considered to have been erroneous.

As has been before mentioned, no contract between the defendant and Rockingham, or between him and Cross & Abbott, could affect the rights of the intestate to his bounty for his enlistment upon the quota of Rockingham, or his right to recover it of the defendant, unless the -intestate knew of the contracts so far as they related to his enlistment and bounty under it, and agreed to them to that extent, and agreed to take what Cross & Abbott paid, or agreed to pay him, in lieu of the claims he would otherwise have had. That part of the charge, stated by itself, seems to have allowed the contract between the defendant and Cross & Abbott to cut off the rights of the intestate, whether he knew and agreed to it or not. Perhaps this part of the charge was qualified in this respect by those parts of it not stated, but if not, it is considered to have been erroneous to that extent.

Judgment reversed and cause remanded.