Ball v. James

• Decision Date: 29 June 1916
• Docket Number: No. 30096.,30096.
• Citation: 158 N.W. 684,176 Iowa 647
• Parties: BALL v. JAMES ET AL.
• Court: Iowa Supreme Court

176 Iowa 647

158 N.W. 684

BALL

v.JAMES ET AL.

No. 30096.

Supreme Court of Iowa.

June 29, 1916.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Both parties appeal, the notice of defendants having been first served. Affirmed in part, and reversed in part.

See, also, 155 N. W. 961.

Milton Remley, of Iowa City, for appellants.

Ball & Ball and Wade, Dutcher & Davis, all of Iowa City, for appellee.

LADD, J.

Martha I. Fickey died testate March 11, 1911. Her will was duly probated and plaintiff appointed executor thereunder. A legacy of $600 and a breastpin were all that was left to the defendant Mrs. N. W. James, a niece of decedent. In this action the executor sought to recover judgment against defendants on their promissory note to decedent of $1,000, dated May 10, 1904, payable two years after date, and prayed that the mortgage securing payment be foreclosed. The defendants admitted the execution of both instruments, but averred that:

“At the time the said note was executed there was also executed another note in the sum of $2,500, and aver the fact to be that the said Martha I. Fickey, being the aunt of defendant Nancy W. James, had the sum of $3,500 for which she did not find a ready borrower; that she requested the said defendant to take the said money and pay her 6 per cent. interest thereon, and give two notes and mortgage as above stated; that as an inducement to give the said notes the said Martha I. Fickey verbally agreed that she would leave the same money to the said Nancy W. James at her death, and that the principal would never have to be paid. She agreed to make her will leaving to the said Nancy W. James the said sum, she stating at said time that all she wanted on it was the interest as long as she lived, and in pursuance of the said agreement the said defendants executed the said note and mortgage, relying upon the said Martha I. Fickey to execute her will devising to the said defendant Nancy W. James the said two notes, and that in pursuance of said agreement the said Martha I. Fickey did execute her will and made provisions therein leaving to the said Nancy W. James the sum of $3,500 as evidenced by the said notes as aforesaid, and in wills drawn subsequent to the execution of the first will after the said agreement was made the said Martha I. Fickey, recognizing her obligation thereto under the said agreement, made provisions in each will to carry out the said verbal agreement as aforesaid until the execution of the last one, which has been admitted to probate; but shortly before her death the said Martha I. Fickey wrongfully and in violation of her said agreement changed the provisions of her said will, so as to deprive the said defendant Nancy W. James of her rights under the said contract; and denied that there is anything due upon said note sued on.”

By way of cross-petition they alleged that the estate had not been settled and ample funds remained in the hands of the executor to satisfy defendants' claim; and, making the averments of the answer a part of the cross-petition, they further alleged that on the date of the note sued on they also executed a note of $2,500 to decedent payable two years thereafter bearing interest at the rate of 6 per cent. per annum, and that upon learning that decedent made no provision in her will leaving Mrs. James the amount thereof with the previous note, and that the executor had no knowledge of any previous wills containing such provisions she concluded that there was no evidence of decedent's agreement, and thereupon she paid the executor said note and interest, amounting to $2,562.50, and that such payment was made in ignorance of the “real facts; and they further aver that by reason of the change of the provisions of her said will by omitting from her will the provisions aforesaid, which was admitted to probate, and which will was executed shortly before her death, the said defendants have been damaged in the sum of, to wit, $2,562.50 in addition to the amount claimed on the note sued on.” After asserting that no prejudice had resulted to the estate by the course pursued, they prayed that the note sued on be canceled and the sum of $2,562.50 be allowed as a claim of the third class against the estate.

The executor demurred to the answer and cross-petition on the grounds (1) that the parol agreement alleged would tend to vary the provisions of the notes and mortgage and for this reason might not be proven; (2) that the alleged oral agreement was without a consideration; (3) that defendants may not recover the amount paid on the note, for that such payment was voluntary, ignorance of the existence of evidence not being a mistake of fact; and (4) that the counterclaim is barred by the statute of limitations. The third and fourth grounds were sustained as to the cross-petition, and otherwise the demurrer was overruled. On hearing the petition was dismissed.

[1] I. The plaintiff's appeal may be disposed of first. It is contended that the evidence of the agreement in parol was inadmissible, in that it tended to vary or contradict the terms of the note and mortgage. We are not inclined to this view. These instruments were complete in themselves. The alleged oral undertaking neither added thereto nor detracted therefrom. It did not purport to vary either. It served merely as an inducement to entering into the written contracts on the terms stated therein. The law is well established that there may be one contract providing for another, or a contract may be partly in writing and partly in parol. Sutton v. Weber, 127 Iowa, 361, 101 N. W. 775;Sutton v. Griebel, 118 Iowa, 78, 91 N. W. 825;Oakland Cemetery Association v. Larkins, 126 Iowa, 121, 101 N. W. 778, 3 Ann. Cas. 559. Were it something additional to the payment of money sought to be exacted from defendants, the evidence might be inadmissible; but neither the note nor mortgage recited the consideration, and, though this is presumed as between the parties, it is subject to proof, and the evidence that in addition to an amount of money loaned there was an executory agreement in no manner violates the rule excluding parol evidence tending to vary the terms of a written instrument. The oral agreement was that the others--that is the note and mortgage--be executed for money loaned on terms agreed to, and in no manner affected the validity of or changed the terms of either.

[2] II. Nor is there ground for saying that the agreement to make the will was without consideration. The decedent had money on hand for which there was no demand, save at 4 per cent. paid by the banks. To induce Mrs. James to borrow at the rate of 6 per cent. per annum and to make use of it during decedent's life, the alleged agreement was made, and, as she so understood, to do this was a valuable consideration for the alleged promise to execute a will. Harlan v. Harlan, 102 Iowa, 701, 72 N. W. 286;Carraher v. Allen, 112 Iowa, 169, 83 N. W. 902;Daily v. Minnick, 117 Iowa, 564, 91 N. W. 913, 60 L. R. A. 840;Times Co. v. Marks, 125 Iowa, 622, 101 N. W. 458;Moench v. Hower, 137 Iowa, 621, 115 N. W. 229;Harris-Emery Co. v. Howerton, 154 Iowa, 472, 134 N. W. 1068;Kenigsberg v. Reininger, 159 Iowa, 548, 141 N. W. 407.

[3][4] III. The evidence discloses that James was a photographer and was frequently assisted by his wife. The latter testified that shortly before May 10, 1904, decedent called at the gallery; that James was in the dark room, and later her father, Judge Fairall, came in; that thereupon Mrs. Fickey said to him that she wanted Mrs. James--

“to take $2,500 that she had, that had been paid in, and she wanted me to take that money and make out of it what I could, and she told him that this money had been paid in; she hadn't expected it then, she thought the parties were going to keep it longer, and she wanted to put it where she could get her 6 per cent. interest; she said she didn't care to leave it in the bank and only get 4 per cent. as she couldn't live on 4 per cent., and she wanted me to take that money; and she told him that she didn't care for the principal, all she wanted was interest on that money while she lived. * * * And she said that we owed her then $1,000, * * * and if I would take this $2,500 and pay her the 6 per cent. interest, and do it as prompt as we always had, * * * if I would pay her interest money as prompt as we had always paid it before that, that money would be mine at her death, and that her will would state that.”

She also testified that a few days later she and her husband executed the note. Her husband testified that at about the same time he heard decedent say to his wife that:

“She had $2,500 paid in; she said she had no place for it, and she wanted Nan (Mrs. James) to take it. Nan said, ‘I don't believe I want to go in debt any more.’ She says, ‘You need never pay it,’ she says, ‘If you pay your interest as prompt as you always have paid me,’ she says, ‘you can have it, and I will leave it to you in my will; all you got to do is to pay the interest prompt as you always have done.’ Q. Was anything said in reference to a note that had been given when she loaned $1,000 before? A. Well, I suppose that is what she had reference to; if we pay the interest on the $2,500 as prompt as we had always paid it before, she said we needn't pay that $1,000 or the $2,500 at her death; she would leave it in her will to Nan. * * * Q. What did your wife say in regard to that? A. She didn't like the idea of going in debt, but she thought she would later, and in a day or two she decided to take it--or possibly two or three days. Q. Question is what she said to Mrs. Fickey at that time. State whether the proposition was restated several times by Mrs. Fickey or not. A. She says, ‘This you will never have to pay.’ Q. While they were talking, after they talked the matter over, state whether Judge Fairall, your wife's father, came in. A. He did. He came into the operating room where Mrs....