Walling v. Newton ( 1886 )

The opinion of the court was delivered by

Taft, J.

The question in this case is, was the plaintiff a competent witness. He was, unless made incompetent by sec. 1002 or 1003 R. L., and this depends upon whether ' ‘ ‘ the contract or cause of action in issue ” was made with Marcellus Newton. The action is trover for the unlawful conversion of the property by the defendant. The plaintiff’s title in an action of trover is not necessarily the question in issue. Where both parties claim from the same source, it evidently is. Did the plaintiff claim the property by virtue of a purchase from Marcellus, it might, under some of our reported cases, be held that such contract of purchase was the matter in issue and the plaintiff incompetent to testify, although we think the decisions upon that point conflicting. But the plaintiff does not claim title through him; his claim is that he bought the articles when new, before they came into the possession of Marcellus, from another party, and that he left them with Marcellus, Avhen he, the plaintiff, went to the West Indies in 1870. He claims under no contract with him, and shows, by his testimony, title derived from another source. If the plaintiff obtained the property by purchase from some one other than Marcellus, any arrangement he might have made with the latter, as to its use or possession, would be collateral to the cause of action in issue. Where the parties claim title from different sources, the plaintiff’s title in an action of trover can in no sense be the cause of action in issue. While it is impossible to reconcile the decisions of our own courts upon questions arising under the sections referred to, we do not think the disposition of this case conflicts with any of them. We think the plaintiff was a competent witness, and under the report entitled to judgment. : •

Judgment reversed, and judgment for plaintiff.