Moore v. Schofield

Temple, C. — This appeal is upon the judgment roll, which, however, includes a hill of exceptions, settled at the time the decision was ■ made, under section 649 of the Code of Civil Procedure. 1

The action was brought to recover eight thousand four hundred dollars, alleged to be due from the defendants upon a contract made by them with plaintiff, whereby they agreed to purchase certain shares of stock in a mining corporation, upon terms agreed upon.

There was also a cause of action set up for moneys laid out and expended for the use of defendants.

[487]It was therefore a suit founded upon an alleged joint obligation on the part of the two defendants.

After suit brought, Schofield died, and his administrator was substituted in his place. Chapman made default, but the administrator of Schofield answered, denying each material allegation of the complaint, placing his denials on the ground that he had no information or belief on the subject sufficient to enable him to answer.

At the trial, plaintiff called as a witness the defendant W. S. Chapman, whose default had been duly entered, and offered to prove by him the contract set forth in his complaint. To this evidence the defendant administrator objected, on the ground that the same was incompetent, it appearing that the witness was a party to this action, and therefore incompetent to testify to any fact which occurred prior to the death of Schofield. The objection was sustained, and an exception was taken.

Plaintiff then offered himself as a witness for the same purpose, but a similar exception was interposed and sustained.

Plaintiff having no further evidence by which to prove the alleged contract, which was not in writing, judgment was entered in favor of the administrator of Schofield, and in favor of plaintiff as against Chapman. •

The point presented is, whether Chapman was a competent witness, under section 1880 of the Code of Civil Procedure, for the plaintiff, against his co-defendant and joint obligor, as to facts which occurred prior to the death of Schofield.

The precise question was presented in the case of Blood v. Fairbanks, 50 Cal. 420. In that case, Blood and Hewitt, as partners, had taken sheep from the defendant to keep for the increase, etc., agreeing to share the profits with the owner. Hewitt had sold his interest in the partnership to Blood, who brought suit against the administratrix of the estate of Fairbanks, the owner of the sheep, for an accounting. As Hewitt had no interest in the proceeding, and asserted no claim against the estate,.