Hess v. Hess
| Decision Date | 06 August 1925 |
| Parties | ELMER HESS, Respondent, v. LILLIE B. HESS, Appellant |
| Court | Idaho Supreme Court |
CONVERSION-PLEADING-EXCESSIVE VERDICT.
1. One cannot be held for the conversion of property received under a valid decree of distribution of the probate court.
2. A judgment in conversion of $8,000, based on a verdict for that sum, is excessive where it appears from the evidence that not more than $5,000 was converted.
3. That a complaint does not state a cause of action may be raised for the first time in the supreme court.
4. Where the question is raised for the first time in the supreme court, a complaint will be held sufficient unless it fails under any view to state a cause of action.
APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.
Action in conversion. Judgment for plaintiff. Reversed.
Judgment reversed. Costs to appellant.
Ira W Kenward, Norris & Sutton, and Martin & Martin, for Appellant.
In an action to enforce the conveyance of real property under an oral agreement for the purchase thereof the complaint must state the making of the contract and the exact terms thereof and that not only has the purchaser fulfilled the terms of the agreement to be performed by him, but that the seller has recognized the contract and has performed to the extent of putting the purchaser in the complete and exclusive possession of the property.
Courts do not permit the full measure of proof required in a case of this character to be met by the plaintiff by a preponderance of the evidence, but will require the plaintiff to establish his case by evidence so clear, satisfactory and convincing that there can be no well-founded doubt in the mind of the court as to the existence of the contract and all its terms. (Rice v. Rigley, 7 Idaho 115, 61 P. 290; Deeds v. Stephens, 10 Idaho 332, 79 P. 77; Bedal v. Johnson, 37 Idaho 359, 218 P. 641; Price v. Lloyd, 31 Utah 86, 86 P. 767, 8 L. R. A., N. S., 870.)
In view of the statutes of Idaho forbidding a husband to be a witness either for or against his wife, without her consent, statements made by him to third parties cannot be introduced in evidence in an action against his wife after the husband's death, without her consent. This is a rule of law and not a mere rule of evidence. (C. S., sec. 7937, subd. 1; Watkins v. Lord, 31 Idaho 352, 171 P. 1133; Humphrey v. Pope, 1 Cal.App. 374, 82 P. 223; Huot v. Wise, 27 Minn. 68, 6 N.W. 425; Larkin v. Baty, 111 Ala. 303, 18 So. 666.)
J. B. Eldridge and Morgan & Smith, for Respondent.
A complaint which alleges that plaintiff is the owner of and entitled to the possession of the property therein described and that defendant wrongfully converted the same to his own use to plaintiff's damage in the sum named states all that is necessary to sustain an action for conversion. (38 Cyc. 2065; Crews v. Baird, 2 Idaho 94, 103, 6 P. 116.)
"Where a person has or accepts possession of money, . . . . with the express or implied understanding that he is not to hold it as his own absolute property, but is to hold and apply it for certain specified purposes, or for the benefit of certain specified persons, a valid and enforceable express trust exists." (39 Cyc. 70.)
Declarations of a deceased person are admissible against him or those who hold under him. (Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.)
WM. E. LEE, J.
--Moses Hess, deceased, resided in Oregon before coming to Idaho in 1903. He was married and the plaintiff and respondent, Elmer Hess, is his son. The mother of Elmer Hess died, and Moses Hess before coming to Idaho, married defendant and appellant Lillie B. Hess, then Mrs. Miller, a widow. At the time of the marriage of Moses Hess and appellant, Moses Hess owned certain real and personal property and appellant owned certain real and personal property. After this marriage, Moses Hess took title to additional real property, payment for which was made from the separate funds of himself and appellant. They sold all the property owned by each of them as well as that jointly owned, except a small amount of personal property, moved to this state and, in 1903, purchased a farm in the Payette Valley a few miles below Emmett. Title to the land stood in the name of Moses Hess. Respondent accompanied them to this state, and he alleges and testifies that shortly thereafter he made and entered into an oral agreement with his father that he would rent the land and pay therefor one-half the crop produced and that he would level the land, construct ditches thereon and otherwise improve it in consideration of which his father agreed that he would give him half of the land or half of the proceeds thereof if it were sold; and in pursuance of the agreement respondent continued to reside on the land until it was sold in 1920. Moses Hess then bought a home in Emmett, in which he resided until it was disposed of and purchased another home in which he resided until his death. Title to the last two places stood in the name of appellant. The farm was sold for $ 16,000; $ 7,000 was paid in money; $ 5,000 was paid in notes secured by a mortgage on other property, referred to as the Lyon notes, and a note for $ 4,000, secured by a mortgage on the farm sold, represented the balance. Moses Hess died March 13, 1922. In the probate proceedings to administer his estate, the inventory showed real and personal property of the appraised value of $ 9,800, in which the Lyon notes were included, all of which was distributed to appellant, the surviving widow. Respondent, either during the administration or soon thereafter, commenced his action against appellant alleging that she had converted his one-half of the receipts from the sale of the farm. The...
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