Cochran v. Zachery

• Decision Date: 10 March 1908
• Parties: ELIZA J. COCHRAN v. R. B. ZACHERY, Appellant
• Court: Iowa Supreme Court

115 N.W. 486

137 Iowa 585

ELIZA J. COCHRAN v. R. B. ZACHERY, Appellant

Supreme Court of Iowa, Des Moines

March 10, 1908

Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.

ACTION to recover balance due on a promissory note and money received by defendant for plaintiff's use. Defendant interposed a counterclaim for money due under contract. At the conclusion of the evidence, the court, on plaintiff's motion, directed a verdict in plaintiff's favor disallowing defendant's counterclaim; and from judgment on this verdict defendant appeals.-- Affirmed.

Affirmed.

Sullivan & Sullivan and Cragan Bros., for appellant.

Bailey & Stipp, for appellee.

OPINION

MCCLAIN, J.

I. The balance claimed by plaintiff as due to her from defendant on the note in suit was the difference between interest at six per cent. and interest at eight per cent. on the face of the note. By its terms the note drew eight per cent. interest but defendant alleged in his answer that through accident and oversight the note by its terms was made to read with interest at eight per cent. The assignment of error with reference to this branch of the case is the sustaining by the court of plaintiff's objection to the question asked him as a witness by his counsel whether there was any agreement between him and the payee of the note with reference to the rate of interest. The objection was on the ground that the question called for testimony tending to vary by parol the terms of a written instrument. There was no error in sustaining this objection. No issue was made as to reformation of the note; and it is plain that, in an action at law on a written instrument, parol evidence is not admissible to show a prior or contemporaneous agreement contrary to the terms of the instrument. The citation of authorities is unnecessary to support so elementary a proposition.

II. A portion of defendant's counterclaim was for services rendered to the plaintiff, who is his sister, and her husband, in collecting certain claims held by the husband. In the first place, there is no evidence that the plaintiff undertook to assume liability for any indebtedness of her husband in this respect. In the second place, it clearly appears in the evidence that the services were voluntarily rendered, and with the express assurance that no charge would be made therefor. Defendant testifies that, had he not believed the plaintiff would carry out the terms of an agreement hereinafter to be referred to, he would have made a charge for these services. But, as against his assurance to plaintiff and her husband that no charge was intended, defendant cannot rely on some unexpressed purpose in his own mind with reference to the matter.

III. The real controversy in this case is as to the right of defendant to recover $ 2,000 alleged to be due him under an agreement with plaintiff, by which she undertook to pay him that amount, if he, acting in conjunction with plaintiff and other heirs of their deceased father, L. E. Zachery, should secure the setting aside of the will of said deceased. The will disposed of real property of the aggregate value of about $ 250,000 in the following manner: As to one portion specifically described it was provided that the net annual rents and profits, with right of possession and enjoyment for life, should go to the defendant, and, after his death, be divided for the term of twenty years between his issue and his widow, the share of the widow on her death or remarriage to be added to the share of the issue, and, on the expiration of said twenty years, the property should vest in said issue in fee simple. If, at the expiration of this period, there should be no living issue of defendant, all the interest that his issue would have taken was to go to testator's other children, or their issue. Similar provisions were made with reference to other specifically described portions of testator's property in behalf of plaintiff and another daughter of testator and another son, and another portion was given in trust to defendant to hold for the benefit of another son, his widow, and issue on substantially the same terms. We are not called upon to interpret the rather intricate provisions of this will; but from what has been said with reference thereto it is apparent that four of the children of testator were to take the rents of specific portions of testator's real property for life, and that fee-simple title was to vest in their issue at the expiration of twenty years from the death of each child, respectively, or, in the event of no issue surviving at that time, the title was to go by descent to the other children of testator or their issue, and that defendant as trustee and his successors were to hold one portion for another son.

Under these circumstances, the children of the testator conceived the idea that they should prefer to take fee-simple title to their father's property by descent rather than the life interest given to them, respectively, with remainders over to vest in their issue after the lapse of twenty years from the time they should die. And accordingly they agreed, as defendant alleged, to join with him in contesting the probate of their father's will on the ground that he was not of sufficient testamentary capacity, and each of the four others agreed to pay him $ 2,000 in the event that the contest of the will should be successful, and each should acquire his share in the father's estate by descent. It is evident that this arrangement was intended to cut off any vested interest in the issue of these five...