GILES v. SMITH

In an action for breach of contract against the promisor's executor, who does not elect to testify, the plaintiff is not a competent witness as to his conversations and dealings with the testator, nor as to the contents of his letters written in reply to those received from the decedent's agent unless it appears that the principal had not read the correspondence and could not testify concerning it.

PARSONS, C. J.

As the executrix did not elect to testify, the plaintiff was properly excluded as a witness to all facts occurring in the lifetime of the deceased as to which the deceased could have testified if living. P. S., c. 224, ss. 16, 17; Parsons v. Wentworth, 73 N.H. 122; Perkins v. Perkins, 68 N.H. 264. Under the settled construction of the statute, the plaintiff could not testify to what Smith did or told him; nor to the contents of the letters, if Smith had seen them and therefore could have testified to their contents. Welch v. Adams, 63 N.H. 344, 351. The plaintiff's testimony was not competent unless the contrary appeared. Harvey v. Hilliard, 47 N.H. 551; Fosgate v. Thompson, 54 N.H. 455; Parsons v. Wentworth, supra.

Exception overruled.

All concurred.