Hein v. Thiel

• Decision Date: 22 April 1976
• Citation: 549 P.2d 514,274 Or. 715
• Parties: Paul HEIN, Respondent/Cross-Appellant, v. Nora S. THIEL, Appellant/Cross-Respondent.
• Court: Oregon Supreme Court

Page 514

549 P.2d 514

274 Or. 715

Paul HEIN, Respondent/Cross-Appellant, v. Nora S. THIEL, Appellant/Cross-Respondent.

Supreme Court of Oregon.

Argued and Submitted March 1, 1976.

Decided April 22, 1976.

D. Richard Fischer, Astoria, argued the cause for appellant/cross-respondent. With him on the briefs were G. C. Fulton, and Anderson, Fulton, Lavis & Van Thiel, Astoria.

John J. Haugh, Portland, argued the cause for respondent/cross-appellant. With him on the brief were Dennis H. Elliott, and O'Connell, Goyak & Haugh, P.C., Portland.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

This is an action to enforce an oral agreement for the division of the assets of a corporation in a proportion different than the respective stockholdings of the parties to that agreement. As a party to that agreement plaintiff seeks to enforce it against defendant, as the personal representative of the estate of the other party to the agreement. Defendant appeals from a judgment based upon an adverse jury verdict.

1. The sufficiency of the evidence of the oral agreement.

Defendant's primary contention is that the trial court erred in denying her motions for a directed verdict and for a judgment n.o.v. upon the ground that plaintiff failed to prove the alleged oral agreement by competent and satisfactory evidence other than the testimony of the claimant against the estate of a decedent, as required by ORS 115.195.

It would serve no useful purpose, in our opinion, to review in detail the evidence offered by plaintiff to support and corroborate his testimony to the effect that prior to the death of defendant's decedent, it had been orally agreed that upon dissolution of the corporation its assets would be divided by first returning to each party the amount paid for his stock (i.e., $20,000 to decedent and $10,000 to plaintiff) and by then dividing the balance equally between them.

Suffice it to say that we have carefully examined the entire record and find that there was other competent and satisfactory evidence to support that claim. That evidence included the testimony of Mr. Lawrence Dean, attorney for the corporation and also for both Mr. Thiel, the decedent, and Mr. Hein, the plaintiff. Mr. Dean testified that a 'complete agreement' to that effect had been made some time prior to the death of decedent, but that its execution had not been completed by a redistribution of the stock in accordance with that agreement. Mr. Dean also testified that shortly before decedent's death decedent told Mr. Dean again that he and plaintiff had agreed to divide the assets of the corporation on the basis of that previous agreement. Two other witnesses, who were friends of both parties, also testified to conversations with decedent at other times to the same effect.

Defendant offered considerable testimony to the contrary which, if believed by the jury, would have sustained a verdict by it in favor of defendant. This being an action at law, however, we are bound by the verdict of the jury if supported by 'competent, satisfactory evidence other than the testimony of the claimant,' as required by ORS 115.195.

2. The sufficiency of the claim against the estate

Defendant also contends that the trial court erred in denying her motions for a directed verdict and for a judgment n.o.v. because plaintiff 'failed to comply with the estate claim procedures' required by ORS 115.005 and 115.025. ¹ More specifically, defendant contends that the letter which plaintiff's attorney wrote to defendant's attorney failed to satisfy the requirements of these statutes in that: (1) it was not 'presented to' defendant, the personal representative of decedent's estate, but was written to her attorney; (2) '(n)o reference in the letters who made to the fact that a claim was being made against the estate'; and (3) the letter did not sufficiently describe 'the nature of and basis for the plaintiff's demand' and that any oral claim was equally insufficient.

Defendant also denies plaintiff's contention that any failure to comply with the requirements of these statutes was waived by her failure to file a plea in abatement, contending that because plaintiff's complaint alleged that a claim had been made against the estate and had been denied a plea in abatement 'would not lie'; that because of these allegations defendant also could not raise the objection by demurrer, with the result that it could only deny these allegations and then raise these contentions on trial when plaintiff failed to prove that a claim had been made in accordance with the requirements of these statutes, citing Fay v. McConnell, 229 Or. 128, 366 P.2d 327 (1961), and Houston v. Briggs, 246 Or. 439, 425 P.2d 748 (1967).

We disagree with this analysis. ORS 115.035 provides that:

'A defect of form of a claim timely presented may be waived by the personal representative or by the court.'

Defendant does not contend that plaintiff's claim was not 'timely presented.' It also appears that when the complaint was filed the estate was still open and defendant does not contend that a proper claim could not still have been made at that time if the defects claimed by defendant had been raised at that time.

In Fay v. McConnell, supra, defendant contended that plaintiff could not bring an action against an estate until a claim against the estate had been rejected. Defendant had filed a general denial to plaintiff's complaint, as in this case. We held (229 Or. at 131, 366 P.2d at 328) that:

'Facts showing that an action is prematurely brought are not available in bar, but such objection must be raised by a plea or answer in abatement, unless the facts appear on the face of the complaint, when the objection may be raised by demurrer. * * *'

To the same effect, see Stevens v. Scanlon, 248 Or. 229, 232, 430 P.2d 1019 (1967).

Houston v. Briggs, supra, also cited by defendant, did not involve a claim against an estate and did not hold to the contrary, as we read that case, despite defendant's contention that it was held in that case that 'since the existence of the condition appeared on the face of the complaint, a plea in abatement did not lie.' In this case, although the complaint pleaded that a claim had been made and rejected, it did not appear from the face of the complaint that the claim did not satisfy the requirements of the statutes.

Under these facts, it was incumbent upon defendant to allege these facts by a plea in abatement if she intended to contend that the claim was defective. Having failed to do so and having instead filed a general denial to plaintiff's complaint, it follows that defendant waived any right that she might otherwise have had to contend that plaintiff's claim did not satisfy the requirements of ORS 115.005 and 115.025.

3. The liability of defendant as personal representative of the estate.

Finally, defendant contends that the trial court erred in denying her motion to 'conform' the judgment to plaintiff's complaint by making it 'run against the defendant in her capacity as the Personal Representative of the Estate of H. Ellsworth Thiel,' instead of against her as an individual.

In response, plaintiff contends that this motion was correctly denied by the trial court because the caption of the complaint named defendant as an individual and its prayer sought judgment against her as an individual; that the verdict was against defendant as an individual and the judgment, to the same effect, had been previously reviewed by defendant's counsel; that the motion to 'conform' the judgment was not made until two months after trial; that because the judgment conformed to the verdict and any objection to the form of the verdict must be made either before the jury is discharged or by a motion for a new trial or is waived; that the trial court had no power subsequently to grant defendant's motion; that in any event, the trial court did not abuse its discretion in denying that motion as a motion to correct the judgment for 'mistake, inadvertence, surprise or excusable neglect'; that plaintiff would suffer prejudice if the motion had been allowed because the estate has been closed; that defendant was not 'lulled into believing that the first cause of action was against defendant in her representative capacity and not against her personally'; that the complaint alleged that defendant, as majority stockholder of the corporation, caused its assets to be divided in a manner contrary to the agreement alleged in the complaint; and that defendant has not properly raised the issue of whether she could be held liable in her individual capacity under the proof shown.

Upon examination of the record we find that although the caption of plaintiff's second amended complaint named defendant simply as 'Nora S. Thiel,' it alleged two causes of action. The first alleged (in Paragraphs I and II) that defendant was the widow and personal representative of the estate of her deceased husband and that plaintiff had made a claim against defendant as personal representative of the estate. It then alleged that the decedent, prior to his death, made an agreement with plaintiff to divide the assets of the corporation, as then alleged, and that after his death the defendant, 'as majority stockholder,' caused such assets to be divided in a manner contrary to that agreement. A second cause of action realleged all of the same facts (except Paragraphs I and II) and alleged that 'For the purpose of this cause of action, defendant Nora S. Thiel, is being sued in her capacity as majority stockholder' in the corporation. ² The complaint included separate prayers for judgment at the end of...