Cotherman v. Cotherman

• Decision Date: 19 November 1885
• Citation: 58 Mich. 465,25 N.W. 467
• Court: Michigan Supreme Court
• Parties: COTHERMAN v. COTHERMAN.

25 N.W. 467

58 Mich. 465

COTHERMAN v. COTHERMAN.

Supreme Court of Michigan

November 19, 1885

Error to St. Joseph.

O.F. Bean, for plaintiff.

Howell Carr & Barnard, for defendants and appellants.

CAMPBELL J.

Plaintiff who is a son of the deceased, presented a claim against the estate, which was disallowed, and, on appeal to the circuit court, he obtained a verdict for a part of it. The administrator brings error. The errors assigned are somewhat numerous, but so far as they rest on exceptions brought to the notice of the judge, they relate to but a few matters and may be grouped together so as to present but a few points. Some objections were made to the action of the court in allowing the appeal papers to be perfected. But as the action came within reported decisions of this court, we need not consider it. The claim consisted of a series of charges extending back to 1870, 1871, and 1872, with an interval of over six years between these and the next credit in 1878, and the only transaction in this interval was a credit to deceased for plowing in 1876, no amount being carried out. The items of the account were all entered on paper, as she swears, contemporaneously by Margaret Cotherman, wife of plaintiff, he being somewhat illiterate. Some of them were sworn to by herself, and some by other witnesses. The item of plowing was sworn to by various persons, and plaintiff was allowed to testify to the amount of land plowed, and to the value of the plowing, but nothing more. It was shown that about a year after the date of the last charge, plaintiff made a note to his father for between five and six hundred dollars, which had not matured, but was payable without interest in January, 1888. Defendants declined to introduce it as a defense, but claimed it was evidence that there had been a settlement and balance found due deceased. When Margaret Cotherman was sworn as a witness only two exceptions were taken to her testimony. One was that she was incompetent to testify to matters within the knowledge of deceased, and the other that some of the items she proved were more than six years old, and barred by the statute of limitations.

The first of these objections has no force. She was not a party to the litigation in any way, and was on the same footing with any other witness. The second objection was also untenable. The items were not inadmissible, but they could not be recovered unless shown to be out of the operation of the statute. That question was one to be dealt with when the testimony was all in, and was so dealt with by charges which were excepted to.

Plaintiff was a competent witness to matters not shown to be within his father's knowledge. The testimony concerning the plowing showed that the plowman did all his work in the absence of decedent, and the objection did not apply. There was testimony to go to the jury upon all the items, and it was not excepted to, except as before mentioned. The court granted the instruction prayed for, that the jury should not act upon any testimony of Mrs. Cotherman depending on what her husband told her, but must act on evidence from persons cognizant of the facts. This charge was twice given: once when presented as a request, and again after the charge was finished, when a juror made an inquiry of the court, which led the court to repeat it again, precisely as desired.

The only exceptions to the substance of the charge are those which complain of the rulings concerning the statute of limitations, and the refusal to charge that the note mentioned must be presumed to have been given in full settlement of accounts. Upon the effect of this note the court charged the jury quite fully that they were to determine from all the facts whether it was or was not a settlement, and should they find it so they must give a verdict for the estate. The exception is to the refusal to charge that it must be held as a settlement as matter of law.

We find no support for this broad doctrine in the authorities, and nothing was cited to sustain it. Whatever we might be disposed to think of the probabilities, it was a question of fact and not of law. From the amount of the verdict it is impossible to tell how many, if any, of the early items previous to 1878 were allowed. Most of them must have been rejected, if not all. But we cannot say that the statute is not in question on the record as it stands, and the rulings are material. It was, we think, for the jury to say whether there had been a running account during the period in question. The relations of the parties were such that laxity of dealing and settlement would not be unnatural, and was certainly possible. The inability of the plaintiff to be sworn without the consent of the defendant makes it impossible to question him on that subject, or on the transaction out of which the note grew, the evidence of which, if existing, is probably in the hands of the estate. Whatever any one may think of the probabilities, they were all in the hands of the jury, and the finding indicates that, whether right or wrong, their verdict was not given without consideration of the items. We cannot substitute our possible views for theirs, if we should hold different impressions.

The assignments of error cover several objections not covered by exceptions. No exception can be noticed which was not made to the judge and noted in the bill. The judgment should be affirmed.

SHERWOOD, J., concurred.

CHAMPLIN J.

Solomon Cotherman died testate February 5, 1883. Defendants are his executors. Commissioners to examine and allow claims against his estate were duly appointed by the probate judge of St. Joseph county; and among the claims presented to them and disallowed was that of the plaintiff, who appealed therefrom to the circuit court, where a trial was had before a jury, which resulted in a verdict for the plaintiff. The case comes here by writ of error. The claim against the estate, as presented to the commissioners, consisted of an account with debit and credit items. Those on the debit side commenced in 1870, and contain a single charge for that year; two in 1871; one in the month of May, 1872; five in 1878, the first bearing date September 10 of that year; thirty-one in 1879; and 19 in 1880, the last charge bearing date December 13 of that year. Those on the credit side commenced in 1868, a single credit being given that year; one in 1869; two in 1871. In 1876 there is a single credit as follows: "1876, by plowing;" no time in the year being mentioned, and no amount credited therefor. There are six credits in 1879, and three in 1880, the last item bearing the date of October 9th.

It will be seen that the continuity of the account is made to depend upon the credit item, in 1876, of plowing, and the date at which it occurred, for the reason that between May, 1872, and September 10, 1878, there are no items charged against the estate in plaintiff's account, a period of over six years and three months. The debit items from 1870 to and including May, 1872, amounted to $320. It was claimed by the defendants that these items, and the amounts charged therefor, were barred by the statute of limitations. To prevent the operation of the statute it became necessary for the plaintiff to prove the item of credit for plowing in 1876. The following is all the evidence there was introduced upon the trial concerning this item. On the direct examination of Mrs. Cotherman, the wife of plaintiff, the counsel for plaintiff asked this question: "Question. And in September, what do you know of the old gentleman doing some plowing for him on this account? Answer. He sent a boy to plow, and furnished a team." The next witness was James Snyder, who had formerly lived in the family of Solomon Cotherman until he was 16 years old, and staid there winters until he got married. He was in his twenty-eighth year at the time of trial in 1884, and consequently was in his twentieth year in 1876; and, unless the plowing was done in the the winter season, it is not probable that it was done by him that year. His testimony upon the subject is as follows:

Direct Examination: "Question. Do you remember of plowing there for Lewis at the old gentleman's request? Answer. Yes, sir; I plowed there. Q. In the year 1876? A. I plowed there. I could not tell you what year it was; for I don't remember anything about it. Q. About what year, as near as you can now tell? A. I don't know. Q. How long a time did you plow there? A. I was there about four weeks, and probably worked about two of them Part of the time I worked, and part of the time I played. Q. Whose team did you have? A. Solomon Cotherman's."

On his cross-examination this testimony was elicited: "Question. Is it not a fact that all the work you know of his doing for the old man is some done on exchange of work between him and the old gentleman, and didn't you so understand it? Answer. They exchanged work back and forth, yes, sir. Q. All the work you have sworn to you understood at the time to be exchange of work? A. Yes, sir."

The next witness for plaintiff was his son, Dell Cotherman, who testified as follows: "Question. State what you know of your grandfather plowing for your father in 1876. Answer. Well, I don't know of his plowing, but I know of Jim Snyder plowing. Q. Who was James Snyder working for at the time he came there? A. For my grandfather. Q. How long did he work there on your father's place plowing? A. Well, I could not tell you just how long. He worked there quite a while I know. I know while he worked there we acted the fool lots of days; went hunting. Q. About how long a day or two? A. Yes; he was there longer than that, I think. Q. Are you able to state about how long? A. No, sir; I was not very big myself." Witness further...