Blunk v. Kuyper

• Decision Date: 14 November 1950
• Docket Number: No. 47741,47741
• Citation: 241 Iowa 1138,44 N.W.2d 651
• Parties: BLUNK v. KUYPER.
• Court: Iowa Supreme Court

Page 651

44 N.W.2d 651

241 Iowa 1138

BLUNK v. KUYPER.

No. 47741.

Supreme Court of Iowa.

Nov. 14, 1950.

Charles H. Scholz, Oskaloosa, for appellant.

Bray, Carson & McCoy, Oskaloosa, for appellee.

MANTZ, Justice.

Plaintiff, Estella M. Blunk, brought suit against defendant, L. A. Kuyper, to recover on a promissory note given her husband on February 3, 1934. The defense was, (1) Statute of Limitations, and (2) Compromise and Settlement. Plaintiff relied upon alleged admissions in writing made by defendant to Stella May Kuyper, wife of defendant, and daughter of plaintiff. The case was submitted to the jury and a verdict was returned for defendant. The plaintiff appealed.

I. The questions presented on this appeal involve the overruling of the plaintiff's motion to strike portions of defendant's answer, rulings on admission of evidence, plaintiff's exceptions to instructions and the denial of plaintiff's motion for a new trial.

We will briefly summarize the pleadings and some of the proceedings relating thereto. On December 16, 1948, plaintiff filed her petition at law against the defendant, L. A. Kuyper, bringing suit on a $2900 note of defendant to J. C. Blunk of February 3, 1934, and due in one year. Plaintiff alleged ownership of the note and stated that in March, 1946 and also in March, 1947, defendant admitted said note in writing; that same had not been paid; and demanded judgment for the sum of $7342.13, attorney fees, and costs.

Defendant admitted the giving of the note to J. C. Blunk; that a true copy was attached to the petition and that J. C. Blunk died July 29, 1935. Defendant admitted that in March, 1946, he signed a written stipulation which was filed with the clerk of the district court in the case of Stella May Kuyper v. L. A. Kuyper, but denied that it removed the bar of the statute and further claimed that later he made a compromise and settlement with plaintiff. He alleged that the stipulation was prepared by Ned P. Gilbert, attorney for Stella May Kuyper, daughter of plaintiff and further specifically pleaded that when said stipulation was prepared and presented to him on March 27, 1947, the $2900 indebtedness was mentioned therein, and that defendant objected to such being included therein and stated that he was not indebted to Mrs. Blunk on any $2900 promissory note; that he had at one time executed a note to said J. C. Blunk in said amount; that said note was outlawed; that defendant was not liable therefor; that the debt for which the said not was given to the said J. C. Blunk was released by him in his lifetime and that to sign the same would revive said note and make the defendant liable therefor; that thereupon said Gilbert stated to the defendant that the language contained in paragraph 9 of said stipulation could not and would not be construed as an admission by the defendant that the indebtedness represented by the $2900 note was unpaid, or as a promise to pay said indebtedness, or as a revival of the outlawed cause of action on said note, and that it was for the sole purpose of protecting Stella May Kuyper against any claim of ademption that might thereafter arise in the estate of her mother, plaintiff herein; that thereafter, and in reliance upon said representations by said Gilbert, defendant signed said stipulation; that the signing of the same under those conditions did not amount to an admission that the note sued upon was unpaid, or a new promise to pay the same or a revival of a cause of action sued upon.

In another division of his answer, defendant realleged the matters above set forth with regard to his objections to the signing of the stipulation and the assurances given him by Gilbert and further stated that on December 20, 1947, he and plaintiff had a full compromise settlement with regard to all claimed indebtedness by defendant to the plaintiff, and that by reason thereof he is not liable to plaintiff in her action.

Plaintiff moved the court to strike from defendant's answer the above allegations as to the circumstances existing at the time the stipulation was prepared and the objections which he, defendant, made to signing the same and the representations made to him by Gilbert and defendant's reliance thereon and his signing the same. This motion was overruled and such ruling is urged as error in this appeal. Thereafter, plaintiff filed reply to defendant's answer and specifically denied each of the affirmative allegations thereof.

We will briefly summarize from the record some matters which have a direct bearing on the issues.

Defendant and Stella May Kuyper were married for 23 years prior to March, 1947, when they were divorced.

It is undisputed that on February 3, 1934, J. C. Blunk, husband of plaintiff and father of Stella, loaned defendant $2900 for which he gave his promissory note due in one year. Upon the death of J. C. Blunk, July 29, 1935, the note became the property of plaintiff herein and was in her possession at all times thereafter. Plaintiff, as executrix of her husband's estate, did not inventory the note. At various times after the death of J. C. Blunk, the defendant became indebted to plaintiff. The record shows that nothing by way of principal or interest had been paid on the $2900 note.

In the fall of 1946, defendant and his wife, Stella, became involved in marital difficulties. On October 21, 1946, Mr. Gaass, attorney for defendant, and Ned P. Gilbert, attorney for Stella, met in Gilbert's office in Oskaloosa, Iowa, and there discussed questions pertaining to certain matters including a property settlement between defendant and his then wife, in case a divorce was granted. A stipulation was prepared and signed by defendant but Stella refused to sign it and it was not used. One of its clauses was Exhibit 5 and in it reference was made to certain debts purported to be owing by defendant to plaintiff. When defendant signed, blank spaces were left for filling in the amount of such debts. The record indicates that these blanks were later filled in by attorneys for Stella May Kuyper. On October 26, 1946, defendant and Mr. Gaass went to Gilbert's office to confer with Gilbert concerning the settlement between defendant and Stella in the divorce proceedings. There a stipulation of settlement was prepared and it was signed by defendant and Stella. At that time, Stella was present with her attorneys, Gilbert, Jones & Fleck.

II. Plaintiff rests her case upon the claim that the two writings referred to above, revive the cause of action, Sec. 614.11, and that they amount to an admission of the $2900 indebtedness and a promise to pay the same.

Defendant's contention, in essence is that the signed stipulation was not a legal revivor of the note sued upon, and that before suit he and plaintiff compromised and settled all claims between them, including the note sued upon.

We will set out the pertinent parts of said writings, being shown in Exhibits 5 and 6:

'Exhibit 5: * * * Part. 10. It is agreed by the parties that the defendant is indebted to Mrs. J. C. Blunk for money advanced to the defendant for business purposes in the amount of $4487.00 Dollars, and, coincident with the granting of the decree of divorce in this case, if a divorce is granted by the court, the defendant will execute a note to Mrs. J. C. Blunk in the amount of $4487.00 dollars with interest at five (5%) percent, payable semi-annually; said not to become due in five (5) years from the date of the execution thereof.'

'Exhibit 6. * * * Par. 9. Defendant hereby acknowledges that he has in the past borrowed certain sums from Mrs. J. C. Blunk, mother of the plaintiff, one of such sums being represented by a note in the amount of Twenty-nine Hundred ($2,900) Dollars and another being a note in the amount of Fifteen Hundred ($1500) Dollars, and certain other evidences of indebtedness and in this connection defendant agrees that he will forthwith negotiate with Mrs. J. C. Blunk in order to determine the amount of his indebtedness to her and that he shall make such arrangements with the said Mrs. J. C. Blunk to satisfactorily compromise or settle said indebtedness so that no claim of ademption shall be made against any expectancy of Stella May Kuyper.'

III. The first three errors urged by plaintiff are presented together in one division of her brief. As all of them essentially relate to the same matter we will consider them together.

The first relates to the refusal of the court to strike from defendant's answer his allegations as to his purpose and interest in executing the stipulation, and his conversation with plaintiff's attorney at the time exhibit 6 was executed.

The second error was the overruling by the court of objections to said defendant's testimony relating to the same subject.

The third related to the action of the court in refusing to strike said testimony.

In consideration of the legal effect of the two exhibits hereinbefore set forth, we are to keep in mind that plaintiff was not a party thereto. The inclusion of the indebtedness existing between plaintiff and defendant was doubtless placed there for a definite purpose. Some reference is made in Exhibit 6 so that no claim of ademption could be made against any expectancy of Stella May Kuyper.

Admittedly on its face the note sued upon was barred by the statute, sec. 614.11, Code of 1946, I.C.A., when the suit was brought.

Section 614.11, Code of 1950, I.C.A. reads: 'Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same.'

This statute has been in our codes for over a century with little change. It has been construed many times and it would serve no useful purpose to attempt to analyze and discuss our many decisions pertaining thereto.

The recent case of Horn v. Anderson, 234 Iowa 1068, 13 N.W.2d 693, 696, deals with the matter of an admission sufficient to revive a barred...