Hill v. Breeden, 2057

• Decision Date: 25 May 1938
• Docket Number: 2057
• Citation: 79 P.2d 482,53 Wyo. 125
• Parties: HILL ET AL. v. BREEDEN
• Court: Wyoming Supreme Court

79 P.2d 482

53 Wyo. 125

HILL ET AL. v. BREEDEN

No. 2057

Supreme Court of Wyoming

May 25, 1938

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action upon a note by Amanda J. Hill, individually and as administratrix of the estate of Richard Breeden, deceased against O. S. Breeden. From a judgment for plaintiff personally in the sum of $ 102.75 and attorney's fees and in favor of plaintiff as administratrix in the sum of $ 1,153.37, defendant appeals.

Reversed, with direction.

For the appellant, there was a brief and oral argument by Bard Ferrall of Cheyenne.

In approaching the question of whether or not the plaintiffs made a prima facie case, the defendant admits the truth of the evidence of the plaintiffs properly received. Boyle v. Mountford, (Wyo.) 270 P. 537; Northwest States Utilities Co. v. Brouilette, 65 P.2d 223. In the event, the plaintiffs made a prima facie case and the motion was properly overruled and later renewed the sufficiency of the evidence is determined by considering the evidence of the plaintiffs in connection with the facts established by the evidence of the defendant. Cincinnati Traction Company v. Durack, (Ohio) 85 N.E. 38. The action can be upon the note even though it has been lost. 38 C. J. 272, 17 R. C. L. 1195. The answer pleads a general denial, lack of consideration, the statute of limitations and payment. These defenses may all be pleaded in the same answer. 29 C. J. 220. The reply denies all affirmative defenses. The court erred in admitting plaintiff's Exhibit A. Caswell v. Ross, 27 Wyo. 1; Henderson v. Coleman, 19 Wyo. 183. Unless notes, as such, can be recorded in the office of a county clerk, exhibit "A" was not admissible in evidence, by virtue of the alleged recording thereof. 22 C. J. 812; 26 A. L. R. 1546; Rehm v. Reilly, (Wash.) 297 P. 147; Turner v. Neisler, (Ga.) 80 S.E. 461; McKinnin v. Fuller, (S. D.) 146 N.W. 910. Plaintiffs failed to make a prima facie case and defendant's motion for judgment should have been sustained at the time plaintiffs rested. The burden of showing nonpayment was upon the plaintiffs. 8 C. J. 1014; Black v. Meyer, (Cal.) 269 P. 173; Algeo v. Stewart, (Mo.) 7 S.W.2d 470. Payment is presumed when the note is found in the possession of the maker. Under the provisions of Sections 74-801 and 74-804, defendant was discharged from all obligation under the alleged note. Gerard v. Bank of New York, 193 N.E. 165. The fact that the note shown by the exhibit was payable to two persons is immaterial. Dewey v. Metropolitan Life Ins. Co., (Mass.) 152 N.E. 82. When the note is cancelled, all interest due on the note is also cancelled. Jambers v. Woods, (Texas) 85 S.W.2d 353. Defendant's Exhibit 1 indicates that the debt had been settled to the satisfaction of Amanda J. Hill. It was competent evidence. 2 F.2d 1-2; In re Russell's Estate, (Cal.) 210 P. 249. An instrument may be payable to two or more persons jointly. Section 74-108, R. S. Exhibit A is payable to Richard Breeden and Amanda Breeden. Richard Breeden died. The note was not listed as an asset of his estate and creditors of his estate have been paid in full. Amanda Hill owned the note and she could destroy it, cancel it, give to the defendant or let it lie forever. Therefore, her settlement disposed of the claim. See note 57 A. L. R. 600. Defendant is Amanda Hill's son. Placing personal property in the defendant's hands raised the presumption of a gift. A receipt of an indebtedness is sufficient to evidence a gift thereof. In re King's Estate--Bank v. King, et al., (Wyo.) 57 P.2d 675. If by the rebuttal testimony the plaintiffs meant to imply that the note was delivered to the defendant through duress or fraud, that implication is not properly derived therefrom. Sturman v. Sturman, (Iowa) 92 N.W. 886; Ulen v. Knecttle, (Wyo.) 58 P.2d 446. No fraud in connection with the destruction of the note was shown by the evidence. The case is governed by Jones v. Wettlin, (Wyo.) 271 P. 217. No fraud or lack of good faith on the part of the defendant was alleged or proved.

For the respondents there was a brief and oral argument by C. A. Swainson of Cheyenne.

There is ample substantial evidence to support the finding of the lower court and it should not be disturbed. Hester v. Smith, 5 Wyo. 291; Phelan v. Brick Company, 26 Wyo. 493; Gray v. Elliot, 36 Wyo. 361. Lumber Company v. Luikart, 36 Wyo. 413. Defendant introduced evidence of an attempted accord and satisfaction. Where payment is pleaded, the burden of proof is on the one alleging it. Kelly v. Dellman, 38 Wyo. 346. The defense of accord and satisfaction must be substantially pleaded. 1 R. C. L. 202; Poor v. Johnson, (Ind.) 96 N.E. 189; Deming Inv. Co. v. McLaughlin, 118 P. 380; Harvey v. D. & R. G., (Colo.) 99 P. 31. Accord and satisfaction is distinguished from payment. City of Rawlins v. Jungquist, 16 Wyo. 403, 1 R. C. L. 178; Bushell v. Elkins, 34 Wyo. 495. Upon a conflict of evidence, the finding of the lower court will not be disturbed. Edward v. Willson, 31 Wyo. 275; Williams v. Yocum, 37 Wyo. 432; Levand v. Realty Co., (Colo.) 257 P. 355; Phelan v. Brick Company, 26 Wyo. 493. The evidence must show a diligent but unsuccessful search for a lost instrument, in order to admit secondary evidence of its contents. People v. Murphy, (Cal.) 129 P. 603. The amendment of plaintiff's petition in accordance with facts proved was proper. Bissinger & Co. v. Weiss, 27 Wyo. 252. In Wyoming no tenancy by the entireties in personalty has been recognized. The doctrine is limited to real property. Peters v. Dona, 49 Wyo. 306; In re Marchands Guardianship, (Ore.) 3 P.2d 128; Stout v. Van Zante, (Ore.) 219 P. 807; Bank v. Freile, (N. J.) 173 A. 93. In re Moran's Estate, 215 N.Y.S. 649.

Bard Ferrall in reply.

While as stated in our original brief, the case of Jones v. Wettlin governs the present case, defendant's position is also supported by a general statement in 1 Am. Jur. 236. Search for a lost instrument is useless and unnecessary when the destruction thereof is established by undisputed evidence. Estates by entirety may exist in personalty as well as in realty. See note 8 A. L. R. 1022.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This is a suit brought by Amanda J. Hill, in her individual capacity, and also as administratrix of Richard Breeden, to recover judgment on the note hereinafter mentioned. The court rendered judgment in favor of plaintiff personally in the sum of $ 102.75 and attorney fees and in favor of plaintiff as administratrix in the sum of $ 1153.37 and attorney fees. From this judgment the defendant has appealed. The facts material are substantially as follows. The term "plaintiff," if used in the singular, will refer to her as plaintiff in the trial court in her individual capacity, unless the context shows otherwise.

Amanda J. Hill, the plaintiff herein, is the mother of O. S. Breeden, the defendant. It appears that in 1917, the plaintiff and her then husband Richard Breeden, father of the defendant, owned a farm in Laramie County, Wyoming, and during that year sold it to the defendant for the consideration of $ 3000, of which $ 500 was paid in cash. A note for $ 2500 was executed by the defendant for the balance of the purchase price, payable to Richard Breeden and Amanda J. Breeden. The note was dated January 1st, 1917; was due in ten years, drawing interest at the rate of six per cent per annum from date until paid. Interest was paid in the sum of $ 150 during each of the years 1918, 1919 and 1920, and none thereafter. In 1923 Richard Breeden died. Amanda J. Breeden was appointed as the administratrix of his estate, and she listed as all and the only assets of the estate the sum of $ 541.17 due from the estate of Melinda Durfee. The note of defendant above mentioned was not listed as an asset. Thereafter the defendant paid to the plaintiff on the note the sum of $ 729.60 by way of merchandise and the further sum of $ 883.88 by way of paying the Federal Land Bank, which, presumably, had a mortgage on the land bought by defendant. In the fall of 1927 the plaintiff contemplated marriage to Hiram R. Hill. In view of that fact, the children of plaintiff and Richard Breeden, five in number, consisting of defendant and three other brothers and one sister, evidently thought that they should have something out of the estate of Richard Breeden, their father. So on November 3rd, 1927, and before the contemplated marriage, the defendant and his mother met. They discussed the matter. According to the defendant, they figured up the amount due, finding it to be approximately $ 800, not counting any interest, defendant claiming that he was not to pay interest, the note providing therefor merely for form's sake. In that claim, defendant is sustained by the testimony of two of his brothers. According to the defendant's testimony, he and his mother agreed that the amount thus approximately due should be paid as follows: $ 175 to plaintiff and the sum of $ 625 to the children equally, namely, $ 125 to each. Notes for the respective amounts were executed by the defendant to his brothers and sister and were subsequently paid. The sum of $ 175 was paid to plaintiff. It was further agreed, according to defendant's testimony, that the note for $ 2500 should be burned, and was in fact burned, by and with plaintiff's consent, at the time of the meeting above mentioned. The burning of the note is admitted. Notwithstanding that the suit herein is on the original note, and it is claimed that there is due thereon the sum of $ 711.63 with interest from December 31, 1920, to June, 1935.

Up to the time when rebuttal evidence was introduced by plaintiffs in this case, the foregoing facts, testified to by the...