Stuart v. Lord

meat are not such as to authorize a review of this finding. The specification is that, “The decision is against law in this, that the evidence in such action shows that plaintiff had been paid nothing on account of her work done for and services rendered to said Edwin Lord by said plaintiff during the years 1897 and 1898.” The notice of intention to move for a new trial assigned as grounds for the motion, both insufficiency of the evidence to justify the decision, and that the decision is against law. Upon the latter ground no specification is required. It was, therefore, unnecessary for the plaintiff to specify in what particular she claimed the decision was against law. But it is clear that the statement is sufficient as a specification of the insufficiency of the evidence to justify the decision. There can be no doubt that the language of the specification is amply sufficient to inform the defendant of the exact finding of fact which it is claimed the evidence did not justify. It plainly states that the claim of the plaintiff was that the evidence showed that plaintiff had received nothing for her work and services, and this was in strict accord with the theory of the plaintiff, which was that even the checks introduced in evidence were not given as payment of her wages, but were returned to him when cashed. There is nothing in the statute which requires a specification of the insufficiency of the evidence to be inserted in any particular place in the statement, nor under any particular subheading. The rule now followed by this court is thus stated: “Whenever there is a reasonably successful effort to state 'the particulars,’ and they are such as may have been sufficient to inform the opposing counsel and the court of the grounds, and the trial court has entertained and passed upon the motion . . . this court ought not to refuse to consider the case on appeal.” (American etc. Co. v. Packer, 130 Cal. 461 .) The objection that the specifications are insufficient is extremely technical, and the bill of exceptions clearly indicates that the respondent was not misled thereby. All the evidence of payment contained therein is found in the evidence given on behalf of the respondent.

On account of the erroneous finding of payment, the order denying a new trial must be reversed.

As the case must go back for a new trial, it is proper to con

sider the question of the competency of the plaintiff to testify. The appellant claims that she was competent to testify that she did not make the admissions concerning an agreed rate of wages, as stated by the witness, Mrs. Baun. The court ruled that she was not competent. Section 1880 of the Code of Civil Procedure, subdivision 3, provides that “Parties . . . to an action . . . against an administrator upon a claim or demand against an estate of a deceased person,” cannot be witnesses “as to any matter or fact occurring before the death of the deceased person.” It is contended that she should have been allowed to testify, and in support of this claim the case of Knight v. Russ, 77 Cal. 413 , is cited. In that case an attorney seeking to recover for his services against an estate, was allowed to testify as to the length of time he had been practicing, and what had been his income for the two or three preceding years. The court held that he was not incompetent for that purpose, saying that, “The evident purpose of this section was to prevent parties from testifying to matters tending to establish the asserted claim or demand, and not to prevent their testifying to other matters which may arise incidentally.” This clause in the opinion is relied upon as decisive of the point in question. But the clause above quoted is immediately followed by the statement that, “The plaintiff’s testimony was wholly as to incidental matters, and they were matters, too, which cannot be said to have occurred before the death of the deceased.” The decision, therefore, cannot be considered as a well-founded precedent in favor of the plaintiff. But this case does not come within the rule stated in that ease. It cannot be said that the testimony here offered would not tend to establish the plaintiff’s claim or demand. An admission of the plaintiff, against her interest, and in contradiction of an important allegation of the complaint upon which issue was joined, namely, the value of her services, is clearly evidence tending to defeat a large part of the asserted claim, reducing it in this case from eight hundred and forty dollars to three hundred and sixty dollars. This evidence having been given it appears to be equally clear that the plaintiff’s testimony to the effect that she did not make the admissions, would tend directly to establish so much of her claim as the other testimony tends to defeat. Such testi

Turner, 14 Cal. 573 .) The decision was placed on the ground that the code provision was not intended to be more rigid with respect to the testimony of a plaintiff in a suit against the estate of a deceased person than was the common law with respect to parties in general. It should be observed, however, that Roche v. Ware may perhaps go too far in saying that a party may testify as to the correctness of books kept by him, and that his testimony should be limited, as in Landis v. Turner, to the fact that he kept books of original entries made at the time of the transactions, and to the identity of the books produced. But these eases furnish no authority for the admission of the testimony of a party to deny the making of admissions by him going to prove or disprove the facts in issue. Rather do they furnish an additional illustration of the reasons why such evidence should not be allowed. It follows that the trial court did not err in sustaining the objection to this testimony of the plaintiff.

For the reasons stated the judgment and order are reversed, and the cause remanded.

Angellotti, J., Van Dyke, J., McFarland, J., Henshaw, J., and Lorigan, J., concurred.