Upon the evidence brought out upon the cross-examination of the plaintiff's wife, it might be found that she was in fact a plaintiff in interest, and hence incompetent to testify in a suit in which the executrix, who was an adverse party, did not elect to testify. Foster v. Ela, 69 N.H. 460; White v. Dakin, 70 N.H. 632. The conclusion of fact, reasonably inferable from the evidence, involved in the exclusion of the testimony, is not open to exception. Colburn v. Groton, 66 N.H. 151, 160.
"When there is a question whether a particular act was done, the existence of any course of office or business, according to which it naturally would have been done, is a relevant fact." Hall v. Brown,58 N.H. 93, 96. The fact that Davis' account in the banks with which he did business did not show any deposit of such sum as the plaintiff claimed to have loaned him had some tendency to show that he did not receive such a sum; for the jury may have thought from the course of his business that, if he had such a sum from the plaintiff to be used in payment for the house, he would have deposited it upon the account from which he made the payment. If the account had shown that on the day, or shortly after, the plaintiff claimed to have loaned Davis $1,200, Davis had deposited that sum upon his bank account, that fact would have tended to support the plaintiff's claim. The defendant could properly show that nothing of the sort took place. The evidence was relevant and competent; its weight was for the jury. The fair rental value of the premises occupied by the plaintiff was *Page 450 one element in the defendant's claim for use and occupation under her set-off. The evidence to that point was not incompetent because it did not prove the whole case and establish the existence of the relationship of landlord and tenant.
The defendant's counsel rightfully called the attention of the jury to the fact that the plaintiff had not appeared before them, if there were any matters in controversy as to which he was a competent witness. That he knew all about the transactions in controversy and could tell about them if present and permitted to testify, was fairly inferable from the evidence in the case. Whether he was a competent witness to these facts against the defendant's objection, was a question of law. Whether, if incompetent, the defendant would have waived her right to object, was a question of fact. The only force to the argument arises from the inference that his testimony, if presented, would have been favorable to the defendant, and hence it must be understood counsel intended to tell the jury, and did tell them, that the defendant would have made no objection to the plaintiff's testimony "all about these transactions." This was a statement of fact not disclosed by the evidence and fatal to the verdict, if material. Concord etc. Co. v. Clough, 70 N.H. 627.
If the plaintiff could have testified as matter of law to the matters referred to, it is immaterial whether the defendant would have objected or not. If he could not, the statement was material and prejudicial. It asked the jury to infer that the plaintiff's testimony would have been favorable to the defendant because the defendant would not have objected to his testifying — a fact which was not in the case except by inference from the statement of counsel. Wright could not have testified unless the defendant consented. P.S., c. 224, s. 16. He was a party on the record and directly interested in at least one third of the note. His assignment of the note as collateral security did not affect his interest in the result of the suit. It was still direct, immediate, and certain. The error of law involved in the statement of counsel might have been corrected by the instructions to the jury. Mitchell v. Railroad, 68 N.H. 96, 117. A correct statement of the law, however, must have included a statement that the plaintiff could have testified if the defendant did not object, and made clear to the jury the meaning of counsel that the defendant was willing the plaintiff should testify. The exception as to the remarks of counsel is sustained. The other exceptions are overruled.
Verdict set aside.
YOUNG, J., did not sit: the others concurred. *Page 451