Howard v. Hester
| Decision Date | 13 April 1959 |
| Docket Number | No. 18456,18456 |
| Citation | 139 Colo. 255,338 P.2d 106 |
| Parties | H. Gordon HOWARD, Individually, and doing business as Dence Realty Company, and Gladys Lola Howard, also known as Gladys Harp Howard, Plaintiffs in Error, v. Joseph D. HESTER, as Conservator of the Estate of Mary E. Hannum, also known as May Hannum and Mae Hannum, a Mental Incompetent, Defendant in Error. |
| Court | Colorado Supreme Court |
H. Gordon Howard, Denver, for plaintiff in error.
Howard E. Erickson, Wayne D. Williams, Denver, for defendant in error.
The parties to this writ of error appear in reverse order of their appearance in the trial court. We will refer to them as they there appeared, or by name. H. Gordon Howard and Gladys Iola Howard, sometimes known as Gladys Harp Howard, are husband and wife. At the time this action was instituted Mary E. Hannum, a mental incompetent, was eighty-five years of age. On March 12, 1957 she was adjudged a mental incompetent incapable, unassisted, of taking care of herself or her property. By order of the Denver county court Joseph D. Hester was appointed conservator of Mrs. Hannum's estate.
On March 19, 1957 the conservator instituted an action to have surrendered and cancelled several documents hereinafter mentioned, together with the cancellation of a promissory note in the sum of $250 executed by Mrs. Hannum in favor of Mrs. Howard, and sought to recover the sum of $1,000 allegedly delivered to defendants on March 11, 1957. The entire action was based on the incapacity of Mrs. Hannum to transact business and as a result of 'urgent demands' and undue influence allegedly exercised upon her by H. Gordon Howard. By way of answer it was alleged that prior to the institution of the action the several documents, except the promissory note, had been cancelled, released and quitclaimed by the defendants who denied receipt of the $1,000. By way of counterclaim Mrs. Howard alleged that on March 11, 1957 Mrs. Hannum made, executed and delivered her cognovit promissory note in the sum of $250 payable to Mrs. Howard ten days after its date and demanded judgment on said note. Issue was joined and trial had to the court, resulting in findings and judgment in favor of plaintiff and against H. Gordon Howard in the sum of $1,000 and cancellation of the $250 note held by Mrs. Howard. From these judgments defendants bring the case here on writ of error.
For reversal it is urged (1) That the trial court erred in permitting Mrs. Hannum to testify in the action; (2) That the evidence upon which the $1,000 judgment was predicated was 'founded only on the Court's personal feeling'; (3) That the court's finding that the 'cognovit note given to Mrs. Gladys Howard * * * was without consideration was an abuse of discretion.'
The record discloses that about February 6 or 7, 1957 Mr. Howard visited Mrs. Hannum at her home, 1121 Josephine Street, Denver, Colorado. As a result of that interview, apparently on February 11, 1957 an 'exclusive and irrevocable' contract was entered into between Mr. Howard, doing business as Denco Realty Co., and Mrs. Hannum, granting the right to sell Mrs. Hannum's apartment house consisting of six apartments, for $25,000, the exclusive agency to run for 240 days. In the event Howard found a purchaser for the property he was to receive a commission of five per cent. This agreement offered and received in evidence has appended to it a list of the rentals produced by the property, totalling $345 per month.
On February 16, 1957 an agreement was entered into whereby Mrs. Hannum granted Howard the right to collect the rents for said property.
Another exhibit dated February 11, 1957, signed by Mrs. Hannum, made Howard her attorney 'in all matters'.
On February 15, 1957 a lease on and option to purchase, for a period of ten years, was executed by Mrs. Hannum in favor of Mr. Howard. The monthly rental was specified as $150 and the option purchase price was fixed at $10,000, payable $500 in cash and the balance $9,500 at the rate of $160 per month including interest at four per cent per annum.
The record discloses that Mrs. Hannum, personally and through her agents, protested to Mr. Howard she would not be bound by these several writings, and on March 11, 1957, the day before she was adjudged a mental incompetent, an 'agreement to compromise dispute' was executed by Mr. Howard and Mrs. Hannum whereby she agreed to pay Howard $10 and he in turn would quitclaim any interest he had in her property. On the same day he executed a quitclaim deed to her property and Mrs. Hannum executed a $250 cognovit note.
On March 15, 1957 the record discloses that Mrs. Hannum executed a ten-year lease on her apartment house and furniture therein to Mrs. Howard, the rental being stipulated as $150 per month. On April 23, 1957 Mrs. Howard surrendered this lease.
The main controversy arises over the transactions between Mrs. Hannum and the...
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...The defendant has the burden of proving the incompetency of an opposing witness by "clear and convincing evidence." Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959). If a witness has the capacity to observe, recollect, communicate and understand the oath to tell the truth, he is compete......
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