Barton v. Dyer

• Decision Date: 04 October 1923
• Parties: EARL S. BARTON, Respondent, v. A. N. DYER and A. S. HARDY, Executors of the Last Will and Testament and Estate of WALLACE SCOTT, Deceased, Appellants
• Court: Idaho Supreme Court

220 P. 488

38 Idaho 1

EARL S. BARTON, Respondent, v. A. N. DYER and A. S. HARDY, Executors of the Last Will and Testament and Estate of WALLACE SCOTT, Deceased, Appellants

Supreme Court of Idaho

October 4, 1923

PERSONAL SERVICES-PLEADING-ADMINISTRATOR-DISQUALIFICATION AS WITNESS UNDER C. S., SEC. 7936-ALLEGED ERROR IN TESTIMONY-RIGHT OF WITNESS TO CORRECT-EXHIBITS-INSPECTION-CROSS-EXAMINATION TO TEST KNOWLEDGE AND MEMORY OF WITNESS-ISSUES INVOLVED IN SUIT-BEST EVIDENCE.

1. In an action for the reasonable value of personal services the complaint should state the general character of such services.

2. A party has no absolute right, after trial and judgment, to correct the transcript of a witness' testimony according to the statement of such witness as to what he testified to on the trial.

3. It is discretionary with the trial court whether or not it will permit exhibits to be passed to the jury for inspection during the examination of a witness.

4. It is not error for a trial court to permit reasonable cross-examination of a witness upon matters not bearing directly upon the issues being tried for the purpose of testing the knowledge and recollection of such witness as to facts about which he has testified on his direct examination.

5. The best evidence of what were the issues involved in a suit is the complaint and answer filed in such suit.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Wallace N. Scales, Judge.

Action for services rendered. Judgment for plaintiff. Affirmed.

Judgment of the district court, affirmed. Costs to respondent.

James F. Ailshie, for Appellants.

A complaint on quantum meruit for services which neither states the business nor profession of plaintiff, nor the kind of service rendered, or what it was for, is not sufficient. (C S., sec. 6687; Phoenix Lumber Co., v. Regents, 197 F. 425; Reid v. Steele, 7 Idaho 571, 64 P. 892; Shaw v. Manville, 4 Idaho 369, 39 P. 559; Pike v Zadig, 171 Cal. 273, 152 P. 923.)

It is error to call an executor on cross-examination and under that guise to go into the whole case of plaintiff who is prosecuting a claim against the estate represented by the executor. (C. S., sec. 7936, subd. 3; C. S., sec. 8935; Darry v. Cox, 28 Idaho 519, 155 P. 660; Boeck v Boeck, 29 Idaho 639, 161 P. 576.)

An executor is not competent to testify for the plaintiff who is prosecuting a claim against the estate of a decedent where such testimony relates to statements and conversations had by the plaintiff, some without and some within the hearing of the decedent in his lifetime. (C. S., sec. 7936, subd. 3.)

"Public policy requires that claims against the estate of dead men should be established by very satisfactory evidence and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids." ( Van Slooten v. Wheeler, 140 N.Y. 281, 35 N.E. 587; 24 C. J. 865, sec. 2183.)

Frank L. Moore, for Respondent.

The amended complaint is sufficient. (C. S., secs. 6687, 6707, 6728; Later v. Haywood, 12 Idaho 78, 85 P. 494; Nobach v. Scott, 20 Idaho 558, 119 P. 295; Shaw v. Manville, 4 Idaho 369, 39 P. 559; Sutherland's Code Pleading, par. 5155; Pomeroy's Code Remedies, 3d ed., 621, secs. 548, 549, and cases cited)

If defendants desired information as to the class, kind or character of services rendered deceased by plaintiff, they should have moved to make the complaint more specific, or should have demanded a bill of particulars. (C. S., secs. 6709, 7582; Pomeroy's Code Remedies, 3d ed., 621, secs. 548, 549, and cases cited; Busta v. Wardell, 3 S.D. 141, 52 N.W. 418.)

The defendant Dyer was a competent witness for the plaintiff. ( Todd v. Martin, 4 Cal. Unrep. 805, 37 P. 872; C. S., sec. 8035; Young v. Montgomery, 161 Ind. 68, 67 N.E. 684; Hiatt v. McColley, 171 Ind. 91, 85 N.E. 772; Chase v. Evoy, 51 Cal. 618; Kinley v. Largent, 187 Cal. 71, 200 P. 937.)

DUNN, J. Budge, C. J., and Wm. E. Lee, J., concur. McCarthy, J., dissents.

OPINION

DUNN, J.

This action was brought by respondent against appellants as executors of the last will and testament of Wallace Scott, deceased, to recover $ 36,000 for services claimed to have been rendered by respondent in the settlement of a certain lawsuit that was pending in the federal court at Moscow, Idaho, in which Warren F. Scott was plaintiff and Wallace Scott was defendant. The cause of action was stated, first, on an express contract, and second, on a quantum meruit.

The case was tried before a jury, which returned a verdict of $ 6,000 for respondent, for which judgment was entered. Appellants moved for a new trial, which was denied. An appeal was taken from both the judgment and the order denying a new trial.

Appellants assign fifty-two errors. It will not be necessary to discuss these in detail, but those that are discussed will be dealt with, as far as possible, in groups as set out in appellants' brief.

Appellants complain of the action of the court in overruling their special demurrer to the second cause of action on the ground that it did not state the "nature, character, extent, manner or amount of services performed, or state any fact from which defendants can ascertain or determine the reasonableness of said pretended services."

That portion of the second cause of action referred to reads as follows:

"That heretofore on or about February, 1918, the above named Wallace Scott, then living, became indebted to plaintiff in the sum of thirty-six thousand dollars ($ 36,000.00) for services performed by plaintiff for, at the special instance and request of, him, the said Wallace Scott."

We think it would have been better pleading if in this cause of action the general character of the services rendered had been set out as was done in the first cause of action; but the error overruling the demurrer was without prejudice to appellants, for this cause of action, as well as the first, is based upon a claim for said services presented to appellants as executors and rejected by them, which claim designates the character of the services for which payment is demanded. Besides this, the answer sets up a further and separate defense, which shows very clearly that appellants are not prejudiced by the error complained of.

Appellants assign as error the refusal of the court to correct the transcript in the testimony of the witness Dyer by making his answer to a certain question "No, sir," instead of "Yes, sir." The motion to make this correction is supported by the affidavit of Dyer, stating that he did not intend to answer said question. "Yes, sir," and that "No, sir" is the true answer. Appellants appealed from the order of the district judge denying motion to make this correction.

We do not understand that a trial judge is compelled to accept a witness' statement after the trial is over as to what he intended to say, and correct the record accordingly. It frequently happens during the progress of a trial that a witness finds he has been mistaken in his testimony and asks permission to correct it, and it is proper that this should be done at any time during the trial when the witness says in open court that the testimony given by him is incorrect and asks leave to make a correct statement, for under such circumstances the other side may question him as to the correction he seeks to make; but the case is different when an application is made to change his testimony long after the trial is over. In settling a transcript, the trial judge must rely upon the reporter's notes and upon his own recollection of the testimony, unless the parties themselves agree that certain corrections shall be made. In this case we have a transcript before us, certified first by the reporter as correct and settled by the trial judge as true and correct, after opportunity given to both parties to call the court's attention to errors therein, if there were any. There was no error in refusing to make the correction requested by appellants.

Appellants complain of the action of the trial court in refusing to allow them to submit to the jury for their inspection at that time an exhibit about which witness Moore was being examined. Appellants say: "We had a right to have them see the evidence at the time that we were calling specific attention to it, and while the witness was giving his version of the signatures to it." We do not understand that counsel, in the examination of a witness, has the absolute right to pass all of his exhibits over to the jury and have them inspected at that moment. This certainly is a matter about which the trial court has some discretion. It would seriously interrupt the progress of a trial in many instances if counsel were accorded the right claimed in this case. There was no error in the action of the trial court.

At the beginning of the trial, respondent called appellant Dyer for examination under C. S., sec. 8035, which reads as follows:

"A party to the record of any civil action or proceedings, or person for whose immediate benefit such action or proceedings is prosecuted or defended, or the directors, officers, superintendent or managing agents of any corporation which is a party to such record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses; and the testimony given by such witnesses may be rebutted by the party calling him for such examination by other evidence. Such witness when so called may be examined by his own counsel, but only as to matters testified to on such examination.

"Nothing contained in this section shall be construed in such manner as to compel the husband or wife to testify against the other, nor to compel a witness to...