Opinion of the Court.

Messrs. BOTSFORD, BARRY & HEALY, for the appellants.

Mr. J. W. RANSTEAD, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a claim filed in the county court of Kane County against the estate of Patrick Freeman, deceased, by the appellee, his son, for services rendered by the latter to the intestate, as a laborer on his farm since appellee attained his majority.

The claimant appealed from the decision of the county court to the circuit court, where a trial was had, which resulted in a verdict and judgment in his favor.

On the trial below, the defendants introduced John Mann as a witness, and offered prove by him certain conversations and transactions between the claimant and his father, the intestate, which would have been material evidence in the case, but the court rejected the evidence, on the ground that the wife of the witness was the daughter of the intestate.

It is claimed that the witness was interested in the event of the suit, his wife being an heir and distributee, and being offered to prove facts occurring before the death of Patrick Freeman, he was an incompetent witness under the second section of the Act of February 19, 1867 (Gross' St. 286), abolishing the disqualification of a witness by reason of interest, which section provides that, "No party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends, as the trustee or conservator of any idiot, lunatic, or distracted person, or as the executor, administrator, heir, legatee, or devisee of any deceased person," etc. But this is not a case which comes within that section. The case there provided for is where the adverse party sues or defends as administrator, etc.; but here, the adverse party, against whom the witness is called, sues in no representative capacity, but in his own right, and the witness was called for, not against, a party defending in the capacity

Opinion of the Court. Syllabus.

of administrator. The objection to the witness on the score of interest was removed by the first section of the act. Had the witness testified to any conversation or transaction with the claimant, the appellee, then, under the second excepted case under section two, the appellee would have been permitted also to testify to the same conversation or transaction.

It is further urged that the wife of the witness having a direct interest in the event of the suit, was incompetent herself, and the husband was not admissible as a witness under the familiar rule, that where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and is therefore incompetent to testify, the other is also incompetent. But, as above shown, the wife herself, of the witness, would have been competent to testify; and we have held the general rule to be, that a wife can be a witness in all cases in which her husband could be a witness. Ill. Cent. R. R. Co. v. Taylor, 24 Ill. 323, and so, vice versa. We think there was error in the rejection of this testimony, for which the judgment must be reversed, and the cause remanded.

CALVIN W. WEST

v.

Judgment reversed.

WILLIAM FREDERICK.

1. FORCIBLE DETAINER - vendor and vendee.

When a party borrows money and conveys land to secure its repayment with interest, and takes back a contract for the re-conveyance of the land upon payment, the relation of vendor and vendee will not exist between them, and the party making the loan can not maintain forcible detainer to recover possession upon default of payment by the party in possession. Such a case is not within the statnte of 1861.

APPEAL from the Circuit Court of De Kalb County; the Hon. THEODORE D. MURPHY, Judge, presiding.

Opinion of the Court.

Mr. CHARLES KELLUM, for the appellant.

Mr. B. F. PARKS, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

The appellee, Frederick, who was plaintiff below, loaned a sum of money to the appellant, West, and instead of a mortgage in form, took an absolute deed of the farm occupied by West, and gave him back a contract to re-convey upon the payment of the sum loaned, within one year. The money not being paid at maturity, Frederick brought this action of forcible detainer. Will the action lie?

It is contended by counsel for appellee that this case falls under the statute of 1861, Gross 301, which extends this action to "all cases between vendor and vendee, where the latter has obtained possession of the land under a contract by parol, or in writing, and before obtaining a deed of conveyance of the same, fails or refuses to comply with such contract to purchase."

This position is untenable. These parties are not vendor and vendee, and the defendant has not obtained possession of the land under a contract with the plaintiff. In two particulars the case is beyond the reach of the statute. It is stated by the plaintiff himself, in his testimony, that these instruments were executed merely as security for the loan of money. But even if the proof on this point were less conclusive, the fact that the defendant did not derive his possession from the plaintiff, would, of itself, be fatal to this action.

The judgment is reversed and the cause remanded.

Judgment reversed.

1. EVIDENCE-agent's statements. The statements of an agent made at the time of hiring a party to labor for his principal in reference to his employment, is not hearsay, but pertinent and legitimate evidence against the principal in a suit against him by the laborer to recover wages.

2. SAME--order of proofs. Under our practice a party has the right to introduce his evidence in the order he may prefer, provided he will connect it, and thus render it material to the issue. Thus, he may first show the acts and statements of one claiming to be an agent, to bind the principal, if he will follow it with proof of the agency, and show that the agent's acts were within the scope of his authority.

3. INSTRUCTION-in relation to single facts. The practice of selecting an isolated portion of the evidence and basing an instruction on it, should not be encouraged. But this court will not reverse for that reason alone, unless it can see that it probably misled the jury.

4. AGENCY-proof of agent's authority. Where the plaintiff was employed to labor for the defendant by one claiming to act as defendant's agent, the fact that defendant, when called on for pay, was informed by the plaintiff that the agent claimed to be such, and failed to deny the agency, or the agent's authority to employ plaintiff, is competent evidence in a suit by the plaintiff against the defendant.

APPEAL from the Circuit Court of Kankakee County; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. THOS. P. BONFIELD, for the appellant.

Mr. C. R. STARR, for the appellee.

M. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee in the Kankakee circuit court against appellant, to recover for work and labor. The declaration contained the usual common counts, to which was filed the plea of the general issue. A trial was had by the court and jury, when a verdict was ren13-62D ILL.

Opinion of the Court.

dered for plaintiff for $270. A motion for a new trial was overruled by the court, and judgment entered on the verdict; and defendant brings the case to this court on appeal.

The first objection urged for a reversal is, that the court erred in permitting what Stabler said to appellee, when he was employed, to go to the jury, before Stabler's agency was proved. Under the practice, a party has the right to introduce his evidence in the order he may prefer, provided he shall connect it, and thus render it material to the issue. This was not hearsay evidence, but it was the declarations of a person who claimed to be the agent of appellant. If he was his agent, then what he said whilst hiring appellee in reference to his employment was pertinent and legitimate evidence. Having proved what Stabler did and said, claiming to be such agent, it then devolved upon appellee to prove the existence of an agency, and that the employment was within its scope. On that question there was a contrariety in the evidence, and it was fairly left to the jury, and they have found there was an agency. When the contract and the evidence of appellee and Griffin are considered, we are not prepared to hold that it does not overcome the testimony of appellant. It was a question of evidence, the determination of which belonged to the jury; and their finding will not be disturbed, as it is not manifestly against the testimony.

Whilst we have frequently said that the practice of selecting an isolated portion of the evidence, and basing an instruction on it should not be encouraged, we have not said that we will reverse for that reason, unless we can see that it probably misled the jury. The instruction based upon appellant's failure to deny that Stabler had authority to employ appellee, when he asked for his pay, and informed appellant that Stabler claimed to be his agent when the employment took place, is objected to by appellant. This was, undoubtedly, evidence tending to prove the issue; we do not see that the instruction could have misled the jury, as it only informed them that they might consider it in reference to whether appellant knew of the contract made by Stabler with appellee.