Greenlee v. Mosnat

• Court: United States State Supreme Court of Iowa
• Writing for the Court: McCLAIN
• Citation: 136 Iowa 639,111 N.W. 996
• Parties: GREENLEE v. MOSNAT.
• Decision Date: 20 May 1907

136 Iowa 639
111 N.W. 996

GREENLEE
v.
MOSNAT.

Supreme Court of Iowa.

May 20, 1907.

Appeal from District Court, Benton County; Obed Caswell, Judge.

Action to recover money received by J. J. Mosnat, deceased, as attorney for plaintiff, on certain fire insurance policies placed in his hands by plaintiff for collection. For defendant a settlement was pleaded in which, as alleged, the full amount of the money received by Mosnat beyond his reasonable fees as attorney for plaintiff had been paid over or accounted for. The action was first commenced during the lifetime of Mosnat, and there was a judgment for plaintiff on a verdict in his favor which was reversed on appeal. See 116 Iowa, 535, 90 N. W. 338. On a second trial there was again a verdict for plaintiff, which was reversed on appeal. See 126 Iowa, 330, 101 N. W. 1122. Pending the second appeal the death of the defendant was suggested, and his executrix was substituted. The present appeal is by defendant from a judgment on a verdict in plaintiff's favor rendered on the third trial of the case. Reversed.

Sherwin and Deemer, JJ., dissent.

[111 N.W. 996]

Tom H. Milner, Nichols & Nichols, and Randall & Harding, for appellant.

C. W. E. Snyder, Whipple & Brown, and Montgomery & Chambers, for appellee.

McCLAIN, J.

For the purpose of determining the question of law now submitted to us, it is sufficient to say that the issues of fact were as to whether there was an oral contract between plaintiff and deceased by which deceased was to receive 10 per cent. of the money collected for plaintiff on the insurance policies, and was therefore bound to account to plaintiff for all the money received by him as plaintiff's attorney in excess of the agreed consideration, the claim of defendant being that no agreement as to the amount of the fee had been made, and whether a certain payment by check of deceased to plaintiff was in full satisfaction of all claims with reference to the money received by deceased for plaintiff, it being claimed by plaintiff that the check was expressly accepted only as payment on account. On the former trial both plaintiff and the deceased, who was then alive, testified as to whether there was an oral agreement for a 10 per cent. fee, and as to whether there was any statement by plaintiff at the time the check was received that it was only accepted in part payment. Testimony of the defendant was offered with reference to services rendered by him to plaintiff as attorney before the insurance policies were placed in his hands for collection, but this testimony was excluded, and the judgment for plaintiff was reversed for this reason. On the trial from the judgment in which his appeal is taken, plaintiff was called as a witness, and testified with reference to the fire insurance policies and the institution of suit thereon by deceased as his attorney, but his offered testimony as to a conversation with deceased with reference to employment in the insurance cases was objected to because of the incompetency of plaintiff as a witness to testify to personal transactions or communications with deceased in view of the provisions of Code, § 4604, which prohibit a party to any action being “examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or the assignee or guardian of such insane person or lunatic.” This objection being sustained, the transcript of the shorthand notes of the evidence of plaintiff given on the former trial while Mosnat was living and the defendant in the case was offered, and over defendant's objection was received, as tending to show the terms of the employment of deceased by plaintiff, and as bearing on the question whether the check then given by deceased to plaintiff was accepted in full satisfaction and by way of settlement. In the same manner the transcript of the testimony of plaintiff with reference to a conversation with deceased in the presence of a witness whose testimony on the former trial was read in defendant's behalf was received in rebuttal. The admissibility of the testimony of plaintiff thus introduced

[111 N.W. 997]

by means of the transcript of the shorthand notes of the evidence on the former trial is the sole question presented for consideration. If the ruling of the court admitting the testimony of plaintiff introduced by means of the transcript was correct, the judgment is to be affirmed. If it was erroneous, a reversal must necessarily follow, for without this testimony plaintiff had no proof of the contract relied upon by him that the fees of deceased should be limited to 10 per cent. of the recovery on the insurance policies. The admissibility in evidence of the transcript of plaintiff's testimony on the former trial is contended for under the provisions of chapter 9, p. 16, Acts 27th Gen. Assem. (Code Supp. 1902, § 245a), the material portion of which is as follows: “The original shorthand notes of the evidence, or any part thereof, heretofore or hereafter taken upon the trial of any cause or proceeding, in any court of record in this state, by the shorthand reporter of such court, or any transcript thereof, duly certified by such reporter, when material and competent, shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken, and for purposes of impeachment in any case, and shall have the same force and effect as a deposition, subject to the same objections so far as applicable.” For convenience we will separately discuss two views presented by appellee with reference to the admissibility of plaintiff's evidence given on the former trial: First, would such evidence be competent as against the prohibition of Code, § 4604; and, second, is it rendered competent by an accompanying statutory provision to which reference will be made in the second division of this opinion?

1. It is evident that the objection under Code, § 4604, is as to the witness as witness, and not to the testimony as evidence. McDonald v. Young,...