Opinion
Decided January 5, 1937.
In an action against an administrator a plaintiff in interest is incompetent under P. L., c. 336, s. 27 to give testimony as to matters occurring in the decedent's lifetime which the decedent could contradict if living, when the administrator does not elect to testify. In an action by a husband to recover against an administrator for work performed for his decedent in payment for land conveyed by the decedent to the plaintiff's wife, the work not having been credited on the note, both husband and wife are incompetent to testify where the amount recovered will belong to the wife. The admissibility of the account books of a party supported by his suppletory oath is not affected by the above statute excluding the testimony of a surviving party.
ASSUMPSIT, upon the common counts for materials and labor furnished to Edward Menancon, the defendant's testator. The items listed in the plaintiff's specification covered the period from 1915 to 1930. The defendant pleaded the general issue and also the statute of limitations. Trial by jury. At the close of the plaintiff's evidence a nonsuit was ordered and a bill of exceptions was allowed by Scammon, J.
Ida M. Chagnon, the plaintiff's wife, offered as a witness in his behalf, testified that she and the plaintiff purchased certain real estate of Menancon, title to which was taken in her name and that she executed a note and mortgage to him for the purchase price; that the plaintiff "was supposed to work to pay for the land," that the amounts earned by him were to be credited on her note and that any amount recovered in the present suit belonged to her. She also testified that no payments were made by the deceased during his lifetime but that he kept an account which she had seen, upon which her husband was credited with the amounts due him. The mortgage note produced at the trial bore no indorsements. The witness also produced six account books which she testified were in her handwriting, containing charges against the deceased for materials and labor furnished by the plaintiff. These entries were admitted subject to the defendant's exception.
At the close of all the evidence the court ordered that the testimony of Mrs. Chagnon as to matters Mr. Menancon could contradict if living should be stricken from the record upon the ground that she is a party in interest, and the plaintiff excepted. The plaintiff then moved that he be allowed to testify to things that happened in the lifetime of the deceased "on the ground that the plaintiff is not an interested party." This motion was denied and the plaintiff excepted. The plaintiff also moved that defendant's plea of the statute of limitations be overruled "on the ground that the evidence discloses a mutual account which bars the running of the statute." This motion was denied and the plaintiff excepted.
Other facts are stated in the opinion.
James A. Broderick and Maurice A. Broderick (Mr. Maurice A. Broderick orally), for the plaintiff.
Warren, Wilson, McLaughlin Wiggin (Mr. Wiggin orally), for the defendant.
From the testimony of the plaintiff's wife, it might be found that she was, in fact, a plaintiff in interest and hence incompetent to testify in a suit against the executor who did not elect to testify. P. L., c. 336, s. 27; Wright v. Davis, 72 N.H. 448, 449 and cases cited. This fact was found by the trial court and his finding is not reviewable here. Wright v. Davis, supra. There was, therefore, no error in his ruling that the testimony of Mrs. Chagnon as to "matters Mr. Menancon could contradict if living," should be excluded.
This ruling destroyed whatever basis there may have been for the plaintiff's claim that the statute of limitations did not bar any portion of his claim because "the evidence discloses a mutual account." There is no other evidence upon which the existence of such an account could be found, and it must, therefore, be held that the statute bars all items in the specification which accrued more than six years before the death of the testator, which occurred in February, 1930.
The ruling which excluded the testimony of Mrs. Chagnon as to "matters Mr. Menancon could contradict if living" did not affect the admissibility of the entries in the account books which she identified. Doe v. Lucy, 83 N.H. 160, 162 and authorities cited. A large number of these entries, commencing in July, 1924 and continuing down to 1930, furnished evidence upon which a verdict for the plaintiff might properly be found. Furthermore, one item in the specification amounting to $300 for a second-hand truck sold by the plaintiff to the decedent, was fully supported by the testimony of Roger Chagnon, a son of the plaintiff, whose competency as a witness was unquestioned. The plaintiff's exception to the order of nonsuit must, therefore, be sustained.
The motion of the plaintiff that he be allowed to testify was apparently based upon the theory that, since his wife was a party in interest, it followed that he was not. This is a complete non sequitur. His interest is equally plain, and the ruling excluding his testimony was correct.
New trial.
PAGE J., was absent: the others concurred.