Casper National Bank v. Curry

• Decision Date: 09 March 1937
• Docket Number: 1999
• Citation: 65 P.2d 1116,51 Wyo. 284
• Parties: CASPER NATIONAL BANK v. CURRY
• Court: Wyoming Supreme Court

65 P.2d 1116

51 Wyo. 284

CASPER NATIONAL BANK v. CURRY

No. 1999

Supreme Court of Wyoming

March 9, 1937

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

Action by Guy R. Curry against John Murdoch, revived against the Casper National Bank, administrator of deceased defendant's estate. To review a judgment for plaintiff the administrator brings error.

Modified and Affirmed.

For the plaintiff in error the cause was submitted on the briefs of Marvin L. Bishop, Jr. and Hagens & Wehrli of Casper.

The agreement of employment between plaintiff and decedent had terminated before the last payment was due. The wage rate sought to be recovered is higher than the amount generally paid for like kind of work. The judgment awarded plaintiff is in excess of the amount prayed for in the original petition. Claims against the estates of decedents should be carefully scrutinized. Van Slooten v. Wheeler, (N. Y.) 35 N.E 583; In re Becker's Estate, 184 N.Y.S. 57; 24 C J. 406; Hartje v. Borstelman, (Ia.) 179 N.W. 88. The test of evidence to warrant recovery of claims against estates is higher than in ordinary actions. Douglas v. Beebe, (S. D.) 195 N.W. 165; Rosseau v. Rouss, (N. Y.) 72 N.E. 916; Hathaway v. Bottenfield, 215 P. 864; Newell v. Newell's Estate, (Ia.) 200 N.W. 238; Craddock v. Jackson, (Mo.) 223 S.W. 924; Lucius Admr. v. Owen, (Ky.) 248 S.W. 495; Bell v. Oates, (Miss.) 53 So. 491. The same rule applies as to evidence sufficient to establish an express contract. Smith v. Estate, (Wis.) 193 N.W. 996. Parol claims against a decedent's estate are looked upon with suspicion and are closely scrutinized by courts. Schon v. Blum, 104 N.Y.S. 887; White v. Devendorf, 111 N.Y.S. 815; Kislingbury v. Evans, (Utah) 121 P. 571; Lans v. Bristow, (Texas) 188 S.W. 970; Liberty v. Haines, (Me.) 68 A. 738. As to evidence required to establish an express contract made with decedent, we cite Quillan v. Van Dyke's Estate, (Mich.) 137 N.W. 79. The nature of the claim of $ 85.00 per month for ten years, in view of the circumstances shown by the record, is preposterous. Quinlan v. Jones, (Wyo.) 198 P. 352; Hahnel v. Highland Park College, (Ia.) 152 N.W. 571. Some times the matter is covered by statute. Lumber Company v. Smith, (Ga.) 66 S.E. 623; Mott v. Baxter, (Colo.) 68 P. 220. The meager provisions of the contract attempted to be proven do not specify any fixed term of employment, define the nature of the work to be done, nor the time when the work was to be done, nor the rate of compensation. It may have been terminable at will. The Pokanoket, 156 F. 241; 39 C. J. 40. If the contract is too indefinite, plaintiff may sue in quantum meruit. Washington R. Co. v. Moss, (Ind.) 96 A. 273; Walls Appeal, (Pa.) 5 A. 220; Bird v. Prescott, (N. J.) 99 A. 380; Sunby v. Green, (Pa.) 90 A. 531; Central Mortgage Co. v. Michigan Life Ins. Co., (Okla.) 143 P. 175; Prior v. Lumber Co., (Ga.) 80 S.E. 559; Ingraham Co. v. Rodgers, (Miss.) 62 So. 230. A party is bound by evidence he offers, even though adverse to his claim. Realty Co. v. Erdrum, 120 N.Y.S. 749; Minear v. Gay, (Mass.) 104 N.E. 961; Beh v. Van Ness, (Ia.) 180 N.W. 292; Sullivan v. Ashville, (Mass.) 116 N.E. 565; Sommerville v. Greennhood, (Mont.) 210 P. 1048; Hope v. Stoner, (Ore.) 218 P. 555; Dental Mfg. Co. v. Southern Ry. Co., 82 Pa. S.Ct. 558.

For the defendant in error, the cause was submitted on the brief of R. H. Nichols and S. J. Lewis of Casper.

Defendant bank contends, without citation of authority, that the lease was cancelled as of April 19, 1932. There was some back rental due thereon. Defendant offered no proof of payment, other than the first payment required under the lease. Defendant relies upon a letter written by Murdoch with reference to this back rental, but it is insufficient to overturn the judgment awarded on plaintiff's first cause of action. The second cause of action is based upon the claim for wages made against the estate of Murdoch. It was contended that the wage rate was in excess of the customary rate in that community, but plaintiff established a contract of employment at the rate specified. An action was pending against decedent at the time of his death to recover on this claim for wages. The case of Jackson v. Mull, 6 Wyo. 55, disposes of defendant bank's contention that the employment contract was void for uncertainty. The authorities cited by defendant bank are distinguishable on the facts from the case at bar and we believe are not in point. Plaintiffs claim was clearly established by the evidence. Wood v. James, 114 P. 587; Muller's Administrator v. Ewing, 174 S.W. 24; Higgs v. Bigelow, 164 N.W. 89; Stone v. Troll, 114 S.W. 82; Foote v. Hoffman, 116 N.W. 924; Pool v. Pool, 21 Wyo. 435; Gauss v. Trump, 135 P. 911; Wise v. Outtrim, 117 N.W. 264; Sullenbarger v. Ahrens, 150 N.W. 71; Hill v. Hill, 90 N.E. 351; Dopeke v. Joslyn, (Minn.) 212 N.W. 167. The claims sued upon were not "stale." An action to recover thereon was pending at the time of the death of defendant Murdock. It would be unreasonable to require plaintiff to prove his case by more than a preponderance of the evidence, when his mouth is closed by Section 89-1704, W. R. S. 1931.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The defendant in error, Guy R. Curry, who will hereinafter at times be referred to as the "plaintiff," brought an action in the district court of Natrona County, against John Murdoch, as defendant, to recover past due rent on certain lands leased by the former to the latter, and also for services asserted to have been performed by him for Murdoch under an alleged oral agreement made between these two men. After the action was commenced Murdoch died and the Casper National Bank being in due course appointed as administrator of his estate, the proceeding was revived against it. Questions raised by its defense to plaintiff's claims and argued here through the briefs filed, will be subsequently detailed and considered. The trial of the action was to the court without a jury, and resulted in a judgment for the plaintiff, with which the administrator was dissatisfied, asserting it to be erroneous in certain particulars.

The facts appearing in the record relative to the plaintiff's claim for past due rent are not in dispute, and, summarized, appear to be: On September 11, 1929, Curry leased to Murdoch 1161 acres of land situated in Converse County, Wyoming, for the term extending from September 11, 1929, to December 31, 1932. The lessee agreed to pay rent as follows: October 15, 1929, $ 200.00; July 1, 1930, $ 200.00; October 15, 1930, $ 200.00; July 1, 1931, $ 200.00; October 15, 1931, $ 200.00; and July 1, 1932, $ 200.00. The first instalment of rent was paid by Murdoch, but not the others. In the spring of 1932, Curry asked Murdoch if he were "going up there that summer"--i. e., if he were going to use the leased lands the coming summer--and Murdoch told him, "No, he wasn't." Thereupon, under date of April 30, 1932, Curry, without saying anything more to Murdoch on the subject, leased the property originally let to the latter, together with some 1920 additional acres of land, a part of which was located in Natrona County, Wyoming, to one Guy E. Barker, for a period commencing April 20, 1932, and ending April 19, 1933, for a lump sum rental off $ 262.50, of which the amount of $ 122.50 was paid the date the lease was made and the balance, or $ 140.00 was required to be forthcoming on or before July 1, 1932.

The administrator, in its answer, admitted an allegation in plaintiff's amended petition to the effect that on account of Murdoch's failure to pay the rental instalments, as above indicated, Curry leased the premises covered by the original agreement of lease to a third party for the balance of the year 1932, for the sum of $ 150.00. This answer pleaded also that Murdoch surrendered the lease given him by Curry and that this surrender was accepted by the latter.

The court rendered judgment in favor of the plaintiff on his claim for rent due, in the amount of $ 850.00, with interest on the several instalments from the dates they accrued. The last rental instalment of $ 200.00, due July 1, 1932, was, it will be noted, reduced to $ 50.00, on account of, as it would seem, the admitted fact that plaintiff received $ 150.00 for the re-letting of the land, the court evidently adopting the view that there had been no surrender of the premises, which had been accepted by the plaintiff. This disposition of the matter is criticized by the administrator, and it is said that the undisputed evidence in the case establishes that Murdoch in the spring of 1932 surrendered the lease he held and that his surrender thereof was accepted by Curry. It is certainly true that if this contention be based upon fact, then the rights and liabilities of the lessor and lessee are somewhat in general terms as indicated by the language of this court in Marshall v. Rugg, 6 Wyo. 270, 44 P. 700, 45 P. 486, where it was said: "The surrender of the lease terminated the relation of landlord and tenant between the parties. It did not terminate the relation of debtor and creditor on account of liabilities already incurred at the time the agreed surrender of the lease was carried into effect by the delivery of possession of the premises."

The evidence in the case does not disclose any agreement between Curry and Murdoch relating to the surrender of these leased premises. Accordingly we are not concerned with an express surrender, sometimes designated a surrender "in fact" or "in deed," which can be accomplished by an appropriately worded instrument manifesting an intention on the part of him who executes it to transfer the leasehold interest to the reversioner. What is...