Opinion
Decided December 10, 1928.
Evidence — Party disqualified because adverse party administrator or executor — Testimony not made competent by calling personal representative for cross-examination — Representative may waive privilege — Party cannot create waiver by cross-examining representative and thereby qualify himself — Section 11495, General Code.
1. A party who is disqualified from testifying because the opposing party is an administrator or executor cannot, by calling and cross-examining such representative of a deceased person as to certain conversations and transactions, thus make competent his own testimony as to the same conversations and transactions.
2. Such representative of a deceased person may waive the protection of the statute; but the adverse party cannot create a waiver by cross-examining such representative and thus qualify himself as a witness.
APPEAL: Court of Appeals for Lucas county.
Mr. P.R. Taylor, Messrs. Fraser, Hiett, Wall Effler, and Mr. Stephen Brophy, for plaintiff.
Messrs. Smith, Beckwith, Ohlinger Froehlich, and Mr. Ray D. Avery, for defendants.
This action was commenced by James G. Hickox against Maud R. Rogers, averred to be the administratrix of the estate of Winfield S. Raydure, deceased, and later averred to be the executrix of his last will and testament, and the Owens Bottle Company. The object and purpose of the action is to establish an interest in or claim upon the profits resulting from the purchase in 1919 of 1,000 shares of the common stock of the Owens Bottle Company and 200 shares of the common stock of the B.F. Goodrich Company. In the court of common pleas the trial resulted in a judgment and decree in favor of the defendants, from which an appeal has been taken to this court.
Winfield S. Raydure was a resident of Bowling Green, Ohio, and died on February 16, 1926. The plaintiff formerly resided in Bowling Green and was acquainted with Winfield S. Raydure for a good many years, but at the time of the transactions involved in this litigation he resided in the city of Toledo. Mrs. Rogers is a daughter of Raydure, and kept his books and accounts, and was authorized to sign checks for him. In September, 1919, she gave a check to Hickox for $30,000, and with this money he was to purchase for Raydure certain stock of the Tiedeman Glove Company. This check Hickox deposited to his own account, but the projected purchase of stock in the Tiedeman Glove Company was not consummated. The money was in fact used by Hickox to apply on the purchase of 1,000 shares of the common stock of the Owens Bottle Company and 200 shares of the common stock of the B.F. Goodrich Company. This stock was purchased in the name of Hickox from brokers in the city of Toledo for about $89,000. Early in December, 1919, Hickox phoned Mrs. Rogers that "the stock I bought for you people has dropped, and it will have to be covered." Pursuant to this notification Mrs. Rogers drew a check for $5,000, and gave it to Hickox for the purpose of making further payment on the purchase of the stock.
In January, 1920, Hickox again called Mrs. Rogers on the phone, and informed her that the stock had met with another drop, and that they would have to cover it again. Thereupon a conference was held in Toledo between Hickox and Mrs. Rogers and a brother of Mrs. Rogers. Hickox ascertained that it would take an additional $54,143.28 to complete the purchase of the stock, and thereupon Mrs. Rogers drew a check for that amount and signed the name of her father, W.S. Raydure, thereto. With the amounts received by Hickox on these checks, he paid to the brokers the balance remaining due on the stocks, and caused the certificates of stock to be issued in the name of W.S. Raydure, and notified Mrs. Rogers that, as soon as the certificates were received, he would send them to her, and the certificates were, in due course, received by her. The final check given for the payment of these stocks was made on January 24, 1920, and the certificates of stock were delivered soon thereafter. Although Winfield S. Raydure survived until February 16, 1926, a date more than six years after the transaction was closed, it was not until after his death that a claim was made by Hickox of an interest in the stocks. On February 24, 1926, he wrote Mrs. Rogers claiming that when the stock was purchased in 1919, Mr. Raydure promised to divide the profit on the stock with him equally.
The plaintiff has filed several pleadings in this case, in the first of which his claim was that he and Raydure had entered into a partnership for the purpose of buying and selling stocks, plaintiff to contribute his knowledge and skill and Raydure the capital, and that the profits were to be divided equally. In a later pleading plaintiff averred that he purchased and paid for all the stock in question, and in this pleading seemed to rely on a resulting trust. In a still later pleading the plaintiff contended that one-half of the purchase price of the stock was a loan to him, and that Raydure held the plaintiff's half of the stock as collateral security for the amount loaned. The stocks purchased have increased greatly in value, and, if Hickox were entitled to half the profits, a large sum would be due to him, and, if such arrangement was really made, has been due to him for a long period of time. Notwithstanding this, Hickox, instead of requesting from Raydure a share of the profits, borrowed from him some $1,350, which he later repaid with interest.
During the trial of the case, Mrs. Rogers was called by the plaintiff for cross-examination, and was asked concerning a conversation she had with Hickox during her father's lifetime regarding the purchase of the stocks made by Hickox. In answer to questions put to her on cross-examination she stated that Hickox mentioned the number of shares purchased, but said nothing about the division of profits and nothing in regard to his compensation. Thereafter counsel for plaintiff called his client for examination, and asked him in regard to the same conversation about which Mrs. Rogers had testified. The plaintiff stated in response to questions asked by his attorney, and over objections of defendant's attorneys, in substance, that Raydure had instructed him to buy the stock and they would split the profits fifty-fifty, and that this arrangement was made with him. We think this testimony is not competent. It is claimed to be competent because Mrs. Rogers had testified regarding the same conversation, but this testimony from her was brought out on cross-examination by plaintiff's counsel. It is not permissible for an attorney representing a client who is disqualified from testifying on a given matter, because of the fact that the opposing party is administrator or executor, to call the administrator or executor, and ask him in regard to the conversation, and thus attempt to make competent the testimony of his client. The protected party waives the protection of the statute, but the adverse party cannot create a waiver by cross-examining the representative, and thus qualify his client. Loeb v. Stern, Admx., 198 Ill. 371, 64 N.E. 1043; Motz, Exrx., v. Motz, 85 App. Div. 4, 82 N.Y.S., 926; Crafton v. Inge, 124 Ky. 89, 98 S.W. 325; 4 Jones on Evidence, pages 768-770 (Ed. 1914).
While we are of opinion that this testimony is incompetent, yet, even with that testimony in the case, we still hold that the plaintiff has wholly failed to establish a claim to an interest of any kind in the stocks purchased by him. The entire money furnished for the purchase of the stocks was provided by W.S. Raydure, and we think the evidence clearly establishes the fact that the purchase of the stocks was made for his benefit, and his benefit alone. A decree will therefore be rendered for defendants.
Decree for defendants.
WILLIAMS and LLOYD, JJ., concur.