Paul Hutchinson vs. Joseph Cleary.
Opinion filed May 31st, 1893.
Evidence of Transactions with Decedents.
Under § 5260, Comp. Laws, a party to an action is prohibited from testifying to a conversation with plaintifi’s intestate, notwithstanding the fact that an agent of the decedent was present at the time the conversation took place.
Parole Evidence Contradicting Written Contract.
Parol evidence held incompetent because it contradicted the terms of a written agreement between the parties; and the error in admitting the evidence held prejudicial because the court submitted to the jury a question of fact, as to which there was no controversy under the evidence, except on the theory that the jury had a right to base a finding upon such parol evidence.
Suspension of Agents Power—Presence of Principal.
So long as the principal acts for himself in a matter, in the presence of his agent, the agent, as to such matter, does not represent the principal. His power is suspended for the time being.
Appeal from District Court, Foster County; Rose, J.
Action on a contract by Paul Hutchinson, administrator of the estate of Charles Hutchison, deceased, against Joseph Cleary and others. Defendants had judgment, and plaintiff appeals.
Reversed.
E. W. Camp, for appellant.
The court erred in admitting proof of the talk between defendant’s and plaintiff's intestate. Because it was offered for the purpose of varying the terms of a written agreement. Dean v. Bank, 6 Dak. 222; Hennessy v. Griggs, 1 N. D. 52; Fuel Co. v. Bruns, 1 N. D. 137. It was also inadmissable under § 5260 Comp. Laws; Taylor v. Bunker, 36 N. W. Rep. 66; Reherds Admr. v. Clem, 10 S. E. Rep. 504; Harris v. Bank, 1 So. Rep, 140; Brague v. Lord, 67 N. Y. 495; Heyne v. Doerfler, 26 N. E. Rep. 1044; Holcomb v. Holcomb, 95 N. Y. 316; Ebert v. Roth, 24 At. Rep. 685.
S. L. Glaspell, for respondents.
Parol testimony was offered to show the understanding of the
