Goggins v. Herndon

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS
• Citation: Goggins v. Herndon, 249 P.2d 203, 73 Idaho 169 (Idaho 1952)
• Decision Date: 15 October 1952
• Docket Number: No. 7878,7878
• Parties: GOGGINS et al. v. HERNDON.

Page 203

249 P.2d 203

73 Idaho 169

GOGGINS et al. v. HERNDON.

No. 7878.

Supreme Court of Idaho.

Oct. 15, 1952

F. A. McCall, Salmon, for appellant.

Charles Herndon, Salmon, E. H. Casterlin, Pocatello, for respondent.

GIVENS, Chief Justice.

Appellant sued for a declaratory judgment, alleging in the first instance that the following document was either a completed gift inter vivos, or an executory contract capable of oral explanation in appellants' favor:

'Exhibit 'A'

Agreement

'William L. Swan, being of sound mind and body, on this 30th day of June, 1949, agree to share equally his estate in its entirety with C. A. Denton of Salmon, Idaho, and John R. Goggins, M.D., Salmon, Idaho, said estate consisting of mining claims, a list of said claims being hereto attached. William L. Swan further agrees that C. A. Denton and John R. Goggins M. D. will assist him in the management, supervision and administration of his estate and business affairs and in the disposition or sale of any part thereof, the proceeds of any sale to be divided and shared equally between the above named parties. Dr. Goggins, a licensed M.D. in the State of Idaho agrees to assist him professionally in any way he is able to.

'Witnesses;

John R. Goggins

C. A. Denton

J. W. Herndon

William L. Swan'

General and special demurrers were interposed and evidently some effort was made by respondent in connection therewith to compel appellants to elect whether the instrument was a gift or executory contract.

The transcript contains an order which recites as follows:

'Order

'This matter came on for hearing at Salmon, Idaho, on the 11th day of October, 1951, at 2:00 o'clock, P.M., the plaintiffs were represented by their counsel, Mr. F. A. McCall, of Salmon, Idaho, and the defendant by Charles Herndon, of Salmon, Idaho.

'Memorandum Decision was emitted October 30th, 1951, and mailed to the respective attorneys.

'At the hearing of the case the plaintiffs, by counsel, abandoned all other propositions, and relied solely and only upon their Exhibit 'A' attached to their complaint, as expanded by Exhibit 'B', also attached to said complaint, as constituting a gift inter vivos. Thus, the motions to require plaintiffs to elect and separately state their causes were taken care of, leaving only the demurrers of the defendant to be considered in connection with any action taken on the declaratory judgment, or otherwise, as asked for in said complaint.

'From a careful reading of the complaint, including the Exhibits 'A' and 'B', and being fully advised by counsel, and after considerable research of my own, I cannot but conclude that taken in its best light the complaint, as consituted above, does not disclose sufficient evidence of gift inter vivos, nor can it be expanded into such by competent oral or extrinsic evidence, because to do so would be to make over the instrument, Exhibit 'A', for the parties, which we cannot do.

'It follows, then, that the matter should be concluded here, and to effect such conclusion the special demurrer will be, and hereby is overruled, and the general demurrer sustained without leave to amend.

'Dated this 10th day of December, 1951.

Henry S. Martin District Judge'

Decree, holding the instrument did not constitute a gift inter vivos, followed.

The appeal appears to challenge only this determination, the assignments of error being as follows:

'1. The Court erred in sustaining the general demurrer to the Plaintiff's complaint.

'2. The Court erred in ordering judgment dismissing the complaint of Appellants.'

Appellants thus argue in their original brief:

'Wherefore the appellants contend that first construction to the effect that the instrument in the written evidence of a completed gift is valid and enforcible, while a construction to the effect it evidences an executory contract would be void and uninforcible and that, therefore, the first should be accepted and the latter one rejected.'

'Conclusion

'We submit that appellants have definitely established the fact that the instrument, plaintiffs' Exhibit 'A', is the written...