Conant v. Kimball's Estate

• Decision Date: 02 February 1897
• Citation: 95 Wis. 550,70 N.W. 74
• Parties: CONANT v. KIMBALL'S ESTATE.
• Court: Wisconsin Supreme Court

95 Wis. 550

70 N.W. 74

CONANT

v.KIMBALL'S ESTATE.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Action by Benjamin F. Conant against the estate of Charles F. Kimball, deceased. From a judgment for plaintiff, the executor appeals. Reversed.

Plaintiff filed a claim in the county court for Fond du Lac county against the estate of Charles F. Kimball, deceased. Such claim was allowed, and the executor appealed to the circuit court. The issue respecting the claim was tried on appeal, and resulted in a finding in substance as follows: (1) Between March, 1873, and December 16, 1886, the deceased was a farmer residing on a farm in Fond du Lac county, during which time the claimant, Benjamin F. Conant, performed labor and services for the deceased as a farm hand, which were reasonably worth $2,056.25, no part of which has been paid except $150, the last of which was paid in August, 1891; (2) that such labor and services were performed under an agreement between the parties that Conant was to be paid therefor by a legacy to him to be made in the will of said Kimball; (3) that Kimball died November 23, 1893, leaving a will in which there was no bequest to Conant. On these findings, and others not necessary to note, the court concluded that Conant was entitled to recover $1,906.25, with interest thereon, and costs. Defendant duly excepted to the findings of fact and conclusion of law, and appealed from the judgment entered pursuant to such findings and conclusion.

Martin & Gooding and E. S. Bragg, for appellant.

Felker, Stewart & Felker, for respondent.

MARSHALL, J. (after stating the facts).

The findings of the trial court to the effect that the respondent worked for the deceased from 1873 to 1886 under a contract that the latter would compensate the former for his services by a legacy to be made in the latter's will, are challenged as not supported by the evidence, and such exception presents the first question for consideration. If any contract was established, it was by evidence of declarations made by the deceased during his lifetime, and while the period of service was in progress, indicated by the following: Lydia Zahn testified that Kimball told her he was not paying Frank (meaning Conant, the respondent) anything, but that he was to have the property when Kimball was through with it. Benjamin Strong testified, in effect, that Kimball stated to him that, if Conant stayed with him, Kimball, and his wife, Conant would have the farm and everything. J. W. Hall testified, in substance, that Kimball stated to him that when he got through with this world Frank would have all that was left of his property. A. C. Jelleff testified, in effect, that Kimball said to him that Frank was not working for him exactly; that he said, “It is understood between us that when I am done with the farm he will have it.” There was other evidence to the same effect. It establishes that, if the work done by respondent was performed under a contract, such contract clearly was entire, and was to the effect that, if respondent remained with and served Kimball during his lifetime, Conant should have what was left of Kimball's property; hence the compensation agreed upon, if any, depended upon full performance on the part of Conant of the condition which required him to stay with Kimball during his life. Now, the evidence is undisputed that such condition precedent was not performed by respondent. He abandoned the deceased six years or more before his death. To be sure, there is some evidence, not of a very satisfactory character, that deceased made statements from time to time after Conant abandoned the former's service, indicating a disposition to pay him for work already done, notwithstanding his failure to remain to the end; but there is no satisfactory evidence that the original agreement, if one was made, was ever changed, while there is considerable evidence to show that it was not changed, and that it was understood between the parties that nothing was due to Conant from the deceased, the most important and convincing of which is that shortly before the latter's death Conant gave him a receipt, showing a full settlement of all matters between them up to that time for the small sum of $10. An effort was made to avoid the prima facie effect of such receipt, but it stands as a strong circumstance in favor of the defendant, and is so persuasive in that regard that, taken with all the other evidence bearing on the subject, we hold that there is no evidence in the record upon which the finding of the trial court under consideration can stand. But, if we concede that there is not such a preponderance of evidence against the findings of fact, in respect to the contract, that we can say there is no legitimate basis therefor, yet the question must be met presented by appellant's exception to the findings in that the trial court did not decide that all the claims and demands on the part of Conant against Kimball were fully settled and discharged during the latter's lifetime. The evidence bearing on that question is that prior to October 20, 1893, Kimball was advised by one of his neighbors to get a receipt from respondent, as there was some talk that the latter claimed to have a mortgage on deceased's farm; that, following such advice, deceased visited respondent, accompanied by Mrs. Tabbert, on which occasion the latter said, in Mrs. Tabbert's presence, that Kimball did not owe him (respondent) a dollar; that the inquiry first made on this occasion by Kimball was whether respondent had any mortgage on the farm, and the reply was “No,” and that deceased did not owe him (Conant) a dollar; that thereupon deceased requested respondent to give him a receipt, and make it in full of all demands, and put in $10 as the consideration to make it legal; that thereupon respondent drew, signed, and delivered to deceased an instrument, which is in the following words: “Ripon, Wis., Oct. 20, 1893. Received of C. F. Kimball, ten...