Biggs v. McCurley

Robinson, J., delivered the opinion of the Court. The plaintiff leased of the defendant’s intestate the dwelling house and premises Number 215 Old Frederick Road, for which he was to pay a rental of $225 a year. The property being in bad condition, the ’ lessor agreed to make the following repairs: First, he was to enclose the premises with new fencing, was to run a neat picket fence from the roadway to Casey’s fence, and to paint the dwelling house, and to make any other repairs which might be necessary. The lessor having failed in his life-time, and the defendant, his administrator, having refused to make the repairs and improvements thus agreed upon, this suit was brought by the lessee to recover damages for a breach of the lease.

The plaintiff, having proved that he had over and over again requested the defendant to ⁴¹¹ make the repairs and improvements as thus stipulated in the lease, and had complained of the annoyance and discomfort which he himself and his family had suffered by reason of the failure to make such repairs, then offered himself as a witness to testify in regard to transactions which had occurred since the death of the lessor. And the first question is whether the plaintiff was, upon this offer, a competent witness? And this depends upon the construction of sec, 2, Art. 35 of the Code. After removing the disqualification of witnesses to testify on the ground of interest, and being parties themselves to the suit, the statute carefully guards the exercise of the right to testify by certain well defined limitations.

And section 2 accordingly provides that “when an original party to a contract or cause of action is dead, or shown to be. a lunatic or insane, or when an executor or administrator is a party to the suit, action, or other proceedings, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiif, or co-defendant, otherwise than now by law allowed, unless a nominal party merely.” The object of this limitation is so apparent, and the language of the statute so plain and explicit, there ought not to he, it seems to us, any difficulty as to its construction. Where the parties to the contract or cause of action are living and sane, it is fair to presume that each has an equal knowledge in regard to the subject-matter in controversy; and this being so the parties themselves are made competent witnesses. But where one of the parties has died or become insane, it would be unfair and unjust to permit the other party to testify in his own behalf. The object of this limitation upon the privilege to testify was to put the parties to the contract or cause of action upon an equal footing.

The test of competency, is the contract or cause of action in issue and ⁴¹² on trial, and not the facts in regard to which the party is called to testify, even though such facts may have occurred after the death of one of the parties to the contract. And if it he conceded that the lease in this case is the contract or cause of action in issue, then the lessor being dead, the lessee himself, it is clear, is not a competent witness. And, to escape this conclusion, it was argued that the breach, and not the lease itself was the cause of action within the meaning of the statute, and as the breach occurred after the death of the lessor, the plaintiff was a competent witness. Now, it may he true that in order to maintain the action, the plaintiff was hound to prove a breach of the lease by the lessor, hut it is equally true that there could not he a breach or cause of action, unless there had been a contract between the parties.

And though the cause of action may he said to embrace the lease and the breach, yet the lease, after all, is the contract on which the action is based. And, this being so, it is the contract, within the meaning of the statute, and the lessor, one of the parties to this contract, being dead, the lessee, the other party, is not, it is clear, a competent witness. So there is no error in the ruling of the Court in this exception. Robertson, et al. vs. Mowell, et al., 66 Md., 533 ; Wright, Ex’r vs. Gilbert, Ex’x, 51 Md., 157 ; Sangston, et al. vs. Hack and Wife, et al., 52 Md., 201 ; Orendorff, Adm’r vs. Utz, 48 Md., 304 ; Dilley, et al. vs. Love, et al., 61 Md., 607 .

The plaintiff then proved that the house and premises were, generally speaking, in a had and dilapidated condition; the house itself needed painting, both inside and out; the plastering was off in many places, especially around the windows and fire-places; the fencing between the yard and the lot, in the rear, and between the yard and barn-yard, was in a rickety and rotten condition, and in some places had fallen down; and that for the ⁴¹³ want of proper enclosures around the premises, the plaintiff was deprived of the use of the stable, and obliged to keep his horse at livery. He further proved that he was deprived of the use of the property for more than three months, waiting for the repairs and improvements to be made, and was then obliged to move into the dwelling house without anything having been done to it or to the premises; that he continued to occupy it till the 17th of October following, when finding all efforts to induce the defendant to make the repairs mentioned in the lease were unavailing, he vacated the property, tie then proved, subject to exception, that he himself and his clerk, spent a good deal of time during a period of two months looking for a house at a moderate rent, suitable for his family, and was obliged at last to take one at an increased rental of $105.00 per annum, and that the expenses incurred and paid by him in vacating the property and moving into another house amounted to $175.00. The plaintiff having closed his case, the evidence thus admitted subject to exception in regard to the costs and expenses incurred by him in vacating the property, was