
    *Mason & als. v. Wood.
    September Term, 1876,
    Staunton.
    I. Evidence — Competency of Parties to Testify. — M, and four others, execute a bond to W, for the price of a jack, and W warrants him sound and a good foal-getter. F, one of the obligors, dies, and in suit on the bond by W, against the survivors, they set up a breach of the warranty as their defence. On the trial "W introduces witnesses to prove what two of the defendants said to the witnesses, long subsequent to the purchase, to disprove by implication the breach of the warranty. And then the defendants offer these two to testify as to what those conversations were. Held:
    i. Same — Same.—F being dead, W, the plaintiff, could not under the statute testify in the cause; and therefore the two defendants are incompetent to testify, though in relation to a matter which occurred after the death of F. See Code of 1873, ch. 178, §§ 81, 88, p. 1109. 1110.
    This was an action of debt in the circuit court of Warren county, brought in May 1873 by Angus M. Wood against James W. Mason and others, surviving obligors with O. E. Eunsten, deceased, upon a bond for $550, dated the 18th of March 1859, payable with interest one year from its date. The bond was given for the price of a jack, and Wood, at the time of the purchase, gave the purchasers a written warranty of soundness, and that he was a sure foal-getter. The defendants relied upon the breach of this warranty as their defense to the action.
    On the trial of the cause there were eight exceptions taken by the defendants to rulings of the court, six of them upon questions of evidence, one as to certain instructions of the court, and one for the refusal of the *court to grant a new trial; but, except one or two of them, they do not involve any question of interest; and on these the case is sufficiently stated in the opinion of Judge Anderson.
    The jury found a verdict in favor of the plaintiff for $440, part of the debt in the declaration mentioned, with interest from the 18th of March 1859 until paid, less four years and two months "war interest; and the court rendered a judgment according to the verdict. And thereupon the defendants applied to a judge of this court for a super-sedeas ; which was awarded.
    Williams & Williams and Cook & Son, for the appellants.
    Walton and Turner, for the appellee.
    
      
       Evidence — Competency of Parties to Testify. — In an action on a contract if one of the parties has died, the opposing party cannot testily, and since he is incompetent, the testimony of the co-contractors of the decedent is thereby rendered inadmissible also. Ginter v. Breeden, 90 Va. 569, 19 S. E. Rep. 656; McDevitt v. Frantz, 85 Va. 753, 8 S. E. Rep. 642; Boyd v. Townes, 79 Va. 122; Grandstaff v. Ridgely, 30 Gratt. 1, and note; Morris v. Grubb, 30 Gratt. 286, and note; Reynolds v. Callaway, 31 Gratt. 436, and note; Carter v. Hale, 32 Gratt. 115, and note; Ellis v. Harris, 32 Gratt. 684, and note. All the above decisions cite the principal case. See further, Owens v. Owens, 14 W. Va. 88; Grigsby v. Simpson, 28 Gratt. 348; Statham v. Ferguson, 25 Gratt. 28; Va. Code, § 3346.
    
   Anderson, J.,

delivered the opinion of the court.

■The plaintiffs in error, James W. Mason, J. McK’. Kennerly, Alexander M. Earle and James R. Teach, were sued hy the defendant in error in debt upon a bond, in which they were the surviving obligors of themselves, and O. R. Runsten, deceased. The consideration of the bond was the price of a jackass, called Royal John, which they purchased from the defendant in error. The bond was delivered to the agent of the defendant in error by Teach, one of the obligors, when the jack was delivered to him several days subsequent to the date of the bond, and at the same time the defendant in error by his said agent delivered to Teach a writing under seal, by which, among other things, he warranted the said jack to be “a prompt performer, a sure foal-getter, and perfectly sound.” The defendants below pleaded a breach of the said warranty, by which they had sustained damages, which they offered to set off against the plaintiffs’ demand.

*In the progress of the trial the plaintiff below introduced as witnesses B. J. Wood, Robert H. Tong and McKay, who testified to conversations they had held long subsequent to the purchase of the jack with James R. Teach and A. M. Earle, two of the obligors and defendants, tending by implication to disprove the alleged breach of warranty. T.o rebut and countervail their testimony, the defendants introduced the said Teach and Earle, with whom the conversations were had, to testify as to what those conversations were. The plaintiff objected to their competency, on the ground that O. R. Runsten, one of the obligors to the bond, was dead. The court sustained the objection, and refused to admit them to give testimony, to which ruling of the court the defendants excepted.

By section 21, of chapter 172 of Code of 1873, no witness is incompetent to give testimony by reason of interest; and in all actions and suits, &c., the parties thereto, whether plaintiff or defendant, are made competent, to testify on their own behalf, if otherwise competent, except as thereafter provided. The exception pertaining to this case is in these words: “When one of the original parties to the contract, or other transaction, which is the subject of the investigation, is dead or insane, or incompetent to testify by reason of infancy, or any other legal cause, the other party shall not be admitted to testify in his own favor, or in favor of any other party having an interest adverse to the party so incapable of testifying. ’ ’

By the express terms of the above recited clause of this section, Runsten, one of the parties to the contract, being dead, Wood, the adverse party, is made incompetent to testify in his own favor, or in favor of any other party having an interest adverse to Funsten. And Wood being incompetent to testify, can either of ^the parties adverse to him be admitted to testify? The language of the statute seems to be explicit. When one of the original parties to the contract is dead, “or incompetent to testify by reason of infancy, or any other legal cause, the other party shall not be admitted to testify in his own favor, ’ ’ &c. The legislature may have intended to limit the incompetency to testify to transactions between the living and deceased party, or to the acts and declarations of the deceased party, and not to have otherwise restricted his general competency, as given by the twenty-first section; but if so intended it is not so expressed. By the terms and express letter of the law, parties in such cases are declared to be incompetent to testify in their own favor, &c. There is no limitation of the incompetency as to the subject-matter of the testimony. It is general and unrestricted. They are declared to be incompetent to testify in the cause in their own favor. It might have .been reasonable in the legislature to have restricted the incompetency to such matters as the other party, if not incapacitated, might be qualified to speak to, as acts and declarations imputed to him, or transactions in which he acted a part, and left untouched his competency as to other matters; and such restriction might comport with the spirit of the act; but the legislature has not so said, and the court is not disposed to extend the operation of the act beyond its terms and express provisions, and the incompetency of parties to testify in their favor, &c., in such cases, being declared by the act in express terms they must be held incompetent to testify to any matter bearing upon the issues in the cause.

This opinion may seem to conflict with the decision of this court in Field v. Brown & al., 24 Gratt. 74; but the cases are not analogous. In that case the general ^competency of the party to testify seemed not to be questioned; but was in fact recognized by the court below, and seems to have been acquiesced in by both parties; and the only point made before this court, was as to the admissibility of some of the questions and answers of the party, whose deposition had been given de bene esse. There was no objection made to his general competency, and the question was not raised in this court, nor seems to have been considered by it. In this cause it is for the first time pointedly and squarely raised, and has to be met; and the court is of opinion, for the reasons given, that there is no error in the ruling of the circuit court, refusing to admit Teach and Earle, parties in the suit, to testify.

The court is also of opinion that upon the facts certified, the court did not err in overruling' the motion for a new trial. The facts certified do not establish a breach of the warranty although the jury, by allowing some damages, impliedly have found that there was a breach. But the facts certified would not warrant the court to set aside the verdict, because of the inadequacy of damages. The fact that the defendants never offered to return the jack, and it not appearing that they ever demanded an abatement from the price, on account of defects in the jack, until after the institution of the suit, raises a strong presumption against the justice of their demand for such an abatement, and in favor of the verdict of the jury.

The court is further of opinion that there is no error in the other rulings of the court, as set out in the other bills of exceptions, for which the judgment should be reversed and the controversy reopened. In the 6th instruction, bill of exceptions No. 6, “That such breach of warranty should be clearly proved by those alleging it, that is, there should be a decided preponderance *of evidence of the breach of the warranty, ’ ’ the word decided ought to have been omitted, but the qualification, which immediately follows, that such evidence as will include every reasonable doubt of such breach is not required, so explains the meaning of what preceded, that the word decided was not likely to mislead the jury. Upon the whole, the court is of opinion to affirm the judgment of the circuit court, with costs.

Judgment affirmed.  