Hughes v. Wachter

• Court: North Dakota Supreme Court
• Writing for the Court: BURR
• Citation: Hughes v. Wachter, 61 N.D. 513, 238 N.W. 776 (N.D. 1931)
• Decision Date: 17 August 1931
• Docket Number: 5880

238 N.W. 776

61 N.D. 513

E. A HUGHES, Respondent, v. ANNIE WACHTER, as Executrix of the Last Will and Testament of G. C. Wachter, Deceased, Appellant

No. 5880

Supreme Court of North Dakota

August 17, 1931

Rehearing Denied November 12, 1931.

Appeal from the District Court of Burleigh county McFarland, J.

Reversed.

Dullam & Young, for appellant.

"To establish a claim against a dead man's estate by parol evidence requires proof direct and positive and terms of liability must be certain and definite." Re Goss (Pa.) 130 A. 304; Re Cady, 207 N.Y.S. 385; Woodman Academy v Maskowitz, 208 N.Y.S. 578; Van Sleuten v. Wheeler, 140 N.Y. 624; Holmes v. Connable (Iowa) 82 N.W. 780.

A plaintiff can recover only on his claim as presented. Lichtenberg v. McLynn (Cal.) 38 P. 541; Etches v. Osena (Cal.) 60 P. 45; Idinger v. Schweigert (Cal.) 110 P. 521; Vanderpool v. Vanderpool (Mont.) 138 P. 772; 24 C.J. 400.

Books of account are admissible in evidence to prove accounts relating to the business or occupation of the one whose books they are. Jones, Ev. 2d ed. 726; 10 R.C.L. 1179; Minton v. Underwood Lumber Co. (Wis.) 48 N.W. 857; Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975; Re Porter (Wis.) 190 N.W. 473.

In an action on open account the plaintiff does not make out a case merely by showing the delivery of the goods and the value thereof. Tolerton & W. Co. v. Sult, 33 N.D. 283, 156 N.W. 939; Starke v. Stewart, 33 N.D. 359, 157 N.W. 302.

Where a cause of action for a distinct sum of money is based on non-payment, the burden of pleading and proving non-payment is on the plaintiff so that the fact of non-payment is put in issue by a denial. Altman v. Bungay Co. 146 N.Y.S. 949; Smith v. State Bank, 114 N.Y.S. 56; Winter v. Pollock (Ala.) 66 So. 11.

In an ordinary action at law there is no presumption of payment. Erich v. Andrews, 202 N.Y.S. 65; Goff v. Bank (Wis.) 47 N.W. 190; Parker v. Baldwin (Mich.) 185 N.W. 746; Wright v. Bank (Ga.) 42 S.E. 96; Roder v. Niles (Ind.) 111 N.E. 340; Kopezynski v. Logging Co. (Wash.) 127 P. 601.

There is no legal presumption that a decedent was indebted at the time of his death, and the burden of proving the existence of such indebtedness is upon the party asserting it. 24 C.J. 400.

"The fact there was no conflict in the testimony does not make the case one for the court instead of for the jury if the evidence for any cause is inconclusive in its nature. . . ." Olson v. Midland Ins. Co. (Minn.) 165 N.W. 475.

O'Hare, Cox & Cox, for respondent.

Slight variance in the claim sued upon from that presented is not fatal. Harwood v. Scott, 57 Mont. 83, 186 P. 693.

A variance between the date of an agreement as stated in the claim and the date stated in the complaint is not necessarily material. Doolittle v. McConnell, 178 Cal. 967, 174 P. 305; White v. Deering, 38 Cal.App. 516, 179 P. 401.

The claimant is not required to confine his evidence to the exact dates or amounts set forth in his claim. It is sufficient if the claim as shown by the evidence is substantially the claim presented to the representative. Branch v. Lambert, 103 Or. 423, 205 P. 995; 3 Bancroft's Pr. 1536.

A plea of payment is only necessary where it interposes new matter. Brown v. Forbes, 6 Dak. 273, 43 N.W. 93; Sylvis v. Sylvis, 11 Colo. 319, 17 P. 912; Mott v. Baxter, 29 Colo. 418, 68 P. 220.

Where the indebtedness is evidenced by a bond or note, the creditor need not prove that it has not been paid, but the burden of proving payment, or other matter in discharge is upon the opposite party. Herrick v. Hays (Iowa) 173 N.W. 110; Tollerton & W. Co. v. Sult, 33 N.D. 283, 156 N.W. 936.

Payment is ordinarily a matter of affirmative defense and as such is ordinarily required to be specifically pleaded. 48 C.J. 664; Lerche v. Brasher (N.Y.) 10 N.E. 58.

The general rule is that the burden of proving payment is upon the party who alleges it. 47 C.J. 680.

Where a decedent had received money either as a loan or for the purpose of investment the burden is on his representative on presentation of the claim therefor to show other payment or an accounting. Re Brown, 60 A. 149; Melone v. Ruffino (Cal.) 79 Am. St. Rep. 127, 62 P. 93.

Proof of payment of a claim against an estate cannot be made by the administrator without pleading payment. Kartoggean v. Harboth (Tex.) 56 S.W. 79.

The burden is upon the administrator to show that no debt exists where a claim is presented against the estate. Chicago Title & T. Co. v. Ward, 113 Ill.App. 327.

The fact of payment being an affirmative defense is a matter to be alleged in the answer and need not be negatived by an allegation in the complaint. Robertson Lumber Co. v. Bank, 14 N.D. 511, 105 N.W. 719; Bank of Bottineau v. Warner, 17 N.D. 76, 114 N.W. 1085; Herrick v. Hays (Iowa) 173 N.W. 110.

Usage and conduct of the parties may have been such as to create an implied contract that their dealings may be proven in such mode. Jones, Ev. 2d ed. 568; Winslow v. Dakota Lumber Co. (Minn.) 20 N.W. 145.

Plaintiff having clearly made a prima facie case by competent evidence, and there being no evidence whatsoever offered on the part of the defendant, and there being no issue for the jury the plaintiff was entitled to have his motion for a directed verdict granted at the time and place it was made. Bruffarts v. Ober, 48 N.D. 997, 118 N.W. 174; Van Nice v. Christian Reformed Church, 59 N.D. 564, 231 N.W. 604; Citizens State Bank v. Smeland, 48 N.D. 466, 184 N.W. 987.

Burr, J. Christianson, Ch. J., and Nuessle, Burke and Birdzell, JJ., concur.

OPINION

BURR

The complaint alleges that on August 9, 1924 the plaintiff sold to G. C. Wachter "twenty shares of the capital stock of the Knife River Coal Mining Co., a corporation, at an agreed price of one hundred ($ 100) dollars per share and for which the said G. C. Wachter . . . agreed to pay . . . the sum of one hundred ($ 100) dollars per share, no part of which has been paid; . . ." that the said Wachter died and defendant qualified as his executrix; that the plaintiff presented to the defendant a claim for the said amount, to-wit: Exhibit "A" attached to "and made a part of the complaint;" that defendant rejected the claim and the rejection was approved by the county court. Exhibit "A" makes claim "to 40 shares of the capital stock of the Knife River Coal Mining Company issued to G. C. Wachter, on the 9th day of August, 1924, at $ 100 per share . . . cost $ 4,000 . . . one-half of cost paid by E. A. Hughes, $ 2,000. To interest on $ 2,000 at the rate of 6% from August 9th, 1924 to May 1st, 1928. $ 477.33; . . . $ 2,477.33.

The answer admits the death of G. C. Wachter, and the qualification of the executrix; but otherwise is a general denial.

The defendant offered no testimony and plaintiff moved for a directed verdict which motion was resisted and denied. The jury found in favor of the defendant. The plaintiff then moved for judgment notwithstanding the verdict or for a new trial, which motion was granted and judgment entered in favor of the plaintiff with costs. From this judgment entered, the defendant appealed, alleging that the court erred in granting the plaintiff's motion for judgment notwithstanding the verdict; that the evidence is not sufficient to justify the granting of this motion; that the court erred in admitting Exhibits 1, 6 and 7; that the court erred in not sustaining objections to a specified question asked the witness C. B. Little and to a specified question asked the plaintiff.

The issue presented to us is whether the court was justified in granting the motion for judgment notwithstanding the verdict.

To sustain his cause of action the plaintiff was required to prove that he had some interest in at least twenty shares of stock of the Knife River Coal Mining Company together with the extent of this interest; and that he sold this interest in these twenty shares of this stock to the decedent at the agreed price of $ 100 per share. The appellant claims further that as the plaintiff alleged non-payment of this amount it was incumbent upon him to prove it.

Exhibit 1, received by the court, is the same as Exhibit "A" attached to "and made a part of this complaint." Appellant says the court erred in admitting this exhibit because the claim made therein differs so much from the claim sued upon as to cause a variance between the proof and the complaint. This exhibit 1, or exhibit "A," was verified by the plaintiff and presented to the county court. True the statements made therein differ somewhat from the statements made in the forepart of the complaint; but exhibit "A" is "made a part of the complaint," and therefore the complaint consists not only of the allegations made in the main portion of the complaint, but also the allegations set forth in Exhibit "A." To understand the nature of the complaint we must consider all portions thereof. Thus the allegations of the sale of twenty shares must be considered in the light of the other portion of the complaint as set forth in the exhibit, where it appears plaintiff is suing to recover for one-half of forty shares. Exhibit 1, or Exhibit "A" was offered by the plaintiff to show that the claim had been filed with the executrix, rejected by her, and the rejection approved by the county court. It was competent for this purpose. It is true the trial court, in his memorandum opinion accompanying the order for judgment notwithstanding the verdict, construes this verified claim as proof of plaintiff's ownership of the stock, but this feature will be discussed later.

It was necessary for the plaintiff to prove that the stock sold belonged to him. The only testimony in the record, on this feature, is the testimony of the witness C. B. Little and whatever probative value is...