Coleman v. Coleman

• Decision Date: 18 December 1911
• Citation: 133 N.W. 755,153 Iowa 543
• Parties: ELIZABETH COLEMAN, v. WM. P. COLEMAN, and ELIZABETH COLEMAN v. TIMOTHY J. COLEMAN
• Court: Iowa Supreme Court

133 N.W. 755

153 Iowa 543

ELIZABETH COLEMAN, v. WM. P. COLEMAN, and ELIZABETH COLEMAN v. TIMOTHY J. COLEMAN

Supreme Court of Iowa, Des Moines

December 18, 1911

Appeal from Webster District Court.--HON. R. M. WRIGHT, Judge.

SOME time prior to his death, which occurred August 19, 1901 Jeremiah Coleman, Sr., was afflicted with a malady which he was aware would soon prove fatal. He owned two farms in Webster County, one containing one hundred and sixty acres on which he lived, and another one hundred and twenty acres across the road, occupied by his son Timothy J. Coleman. Wm P. Coleman, youngest of ten children, was unmarried, and resided with his parents. The eldest son, Jeremiah Coleman, Jr., and the seven daughters, had long since married and left home. On June 12, 1901, Jeremiah Coleman, Sr., his wife, Elizabeth, joining, conveyed the one hundred and sixty acres subject to an incumbrance of $ 500 to William and the one hundred and twenty acres subject to incumbrance of $ 800 to Timothy by separate warranty deeds, reciting in each the consideration as $ 1. At the same time, and as a part of the same transaction, an instrument in words following was executed:

Agreement of lease, made this day between Timothy J. Coleman and Mary Coleman, his wife, of the county of Webster, and state of Iowa of the first part, and Jeremiah Coleman, Sr., and Elizabeth Coleman, of the county of Webster, in the state of Iowa of the second part, witnesseth: That the said parties of the first part has this day rented to the party of the second part the following described premises, situated in the county of Webster, in the state of Iowa for the term of twenty years, but to terminate at the death of both of the two second parties: The southeast one-fourth of the northeast one-fourth, and the north one-half of the southeast one-fourth, of section 3, Jackson township, Webster County Iowa. This lease given to secure to second party the payment of two hundred dollars ($ 200) yearly, which first parties agree to pay to said second parties until the death of both of second parties, these being the conditions upon which second parties have deeded to first parties the property above described. On the following terms and conditions, to wit: For the rent of said premises, the said party of the second part hereby agrees to pay to the said party of the first part one and no/100 dollars, said rental to be paid promptly, as follows: [Here followed the terms generally found in a farm lease and it ended.] In witness whereof, we have hereunto set out hands this 15th day of June, 1901.

Timothy Coleman.

Mary Coleman.

Jeremiah his X mark Coleman, Sr.

Elizabeth her X mark Coleman.

An instrument exactly like the above, concerning different land, and save that Wm. P. was named and signed as party of first part, instead of Timothy and wife, and the amount of payment was $ 300 per annum, instead of $ 200, also was executed.

After the death of Jeremiah Coleman, Sr., William, with his mother, continued in occupancy of the one hundred and sixty acres until the spring of 1903, when the land was rented, and they moved to Des Moines. About $ 500 was realized from the sale of horses and farm implements and $ 530 was received in advance for a year's rent, and with this and some borrowed money a lot with three houses on it in Des Moines was purchased. Two of these houses were rented and the other occupied by them. Out of such rent and William's earnings as an employee of the street railway company they lived, she keeping house for him until May, 1905, when he married. The plaintiff continued to make her home with William until some time after he moved back on the farm in 1908. He sold the Des Moines lot, realizing therefrom $ 1,650, out of which he paid an indebtedness of about $ 450 and had used most of the remainder. Up to the time of his marriage the mother performed all the work incident to keeping house for William, and thereafter aided his wife in so doing. During this period she was unusually strong and healthy for one of her years, and all she received from him was money used in meeting the expenses of the family, purchasing clothing, and to pay her railroad fare when she visited her daughters. Timothy had given her a pair of shoes and $ 6, half of which she claims to have returned. On May 13, 1909, she left William, and took up her residence with a daughter, Mrs. Passou. Shortly afterwards payment of the amounts stipulated in the contracts was demanded, and, not being paid, an action was begun against each of defendants. Each defendant pleaded several defenses, and by way of cross-petition prayed that the contracts be reformed so as to include conditions that payment of the sums promised should not be made save when the mother ceased to make her home with one of defendants. The causes were consolidated, and, upon hearing, the contracts were treated as though reformed as prayed, and judgment entered against each for the respective proportions of the annual payments that the time intervening between the departure of plaintiff from William's home and the bringing of the actions bears to one year. The plaintiff appeals.

Affirmed.

Healy & Healy, for appellant.

Mitchell & Fitzpatrick and Kelleher & O'Connor, for appellees.

OPINION

LADD, J.

The farms were in the name of Jeremiah Coleman, Sr., who died August 19, 1901. Prior thereto, on June 12th of the same year, he conveyed the farm on which he resided to his youngest child, William, then single and twenty-six years of age, reciting in the deed that the consideration was $ 1. On the same day he executed a similar deed for one hundred and twenty acres of land then occupied by the grantee to his son Timothy, who had been married several years, and was third youngest of the family, and thirty-two years of age. His eldest son and seven daughters were all married, and had long since left home. As a part of these transactions an instrument denominated a lease was entered into by the deceased and William and another of like import by deceased and Timothy. Each of these contained the following stipulation, save that in the one signed by Timothy the amount to be paid was $ 200, while in that of William this was $ 300: "This lease given to secure the second party the payment of three hundred dollars ($ 300) yearly, which first party agrees to pay said second party until the death of both of second parties, these being the conditions upon which second parties have deeded to first parties the property above described." The plaintiff as wife of deceased joined him in executing the deeds and also in signing these instruments, wherein they are designated as parties of the second part. Jeremiah Coleman, Sr., was then afflicted with a malady which, as he must have anticipated, soon proved fatal. At about the same time he paid or caused to be paid $ 50 each to his eldest son and the daughters, either as a gift or as what he intended as their shares in his estate. His widow, the plaintiff, continued to reside at the same place with William until 1903, then accompanied him to Des Moines, where they remained five years, and returned with him to the farm, but left May 13, 1909, and has since made her home with a daughter. During the period of her residence with William, she was well cared for, and, notwithstanding some intimations to the contrary contained in the record, was supplied with sufficient funds for clothing, traveling expenses, and other necessaries. Neither Timothy nor William question their obligation to pay the yearly sums as provided in the contracts since she left William's home; but to her demand for payment of such sums since the execution of the contracts several defenses are interposed, and in cross-petitions they assert that by mutual mistake there was omitted from each contract a provision that it was executed to secure plaintiff a home, and that the amount specified therein was to be paid yearly only in event that a home was not furnished her by William or Timothy, and defendants prayed that the contracts be reformed so as each shall include the same.

Appellants argue that the pleadings are insufficient to raise this issue, in that the cross-petition does not set forth in complete terms the original agreement and also that reduced to writing, and point out with clearness wherein there was a mistake. Undoubtedly the rules of good pleading exact that a party requesting that a contract in writing be remodeled so as to express the true understanding of the parties shall embody both the defective instrument and the real agreement in his pleading. The petition should "clearly and distinctly state what was the contract or agreement between the parties, and show what part of the contract was omitted to be reduced to writing, or what portion of the contract as it was expressed in writing was not embraced in the original contract. The plaintiff's allegations must show in terms what the tenor of the instrument ought to be to express the contract which by mistake there was a failure to execute. It is not sufficient to allege that it was the intention of the parties to make an instrument that would accomplish a certain object, and ask the court to make a writing that will accomplish that object." 18 Ency. P. & P. 824. In other words, the transaction as it occurred, and not its legal effect, should be alleged. In Foster v. Schmeer, 15 Ore. 363 (15 P 626), the court in holding that the plaintiff's allegations were insufficient said: "He would ordinarily have to set out the terms of the contract as the parties made it, what they each undertook and agreed to do, and show why its terms happened to be left out when it was attempted to be reduced to writing or how terms not agreed upon came to be inserted." In Hyland...