Hunt v. Coe & Wells

• Court: Iowa Supreme Court
• Writing for the Court: LOWE, J.
• Citation: Hunt v. Coe & Wells, 15 Iowa 197 (Iowa 1863)
• Decision Date: 13 October 1863
• Parties: HUNT v. COE AND WELLS

15 Iowa 197

HUNT v. COE AND WELLS

Supreme Court of Iowa, Des Moines

October 13, 1863

Appeal from Muscatine District Court.

A SUIT brought to recover a balance claimed to be due upon a lease in which the plaintiff failed, and comes here on various exceptions to certain rulings made by the Court on the trial.

Affirmed.

Richman & Bro. for the appellant, cited Collins v Vandever, 1 Iowa 573; Bennett v. Nye, 4 G Greene, 410; Wilber v. Paine, 1 Ohio 251; Earl of Aylesford's Case, 2 Strange 783; Jones v. Peterman et al., 3 S. & R., 543; Grant v. Ramsey, 7 Ohio S. R., 157; Rev. 1860, § 2942; Acker, Sheriff, v. Witherell et al., 4 Hill, N.Y., 112.

Brannon and Butler for the appellee, cited Westheimer v. Peacock, 2 Iowa 531; Story Eq. Jur., § 762; Noel v. Noel, 1 Iowa 423; Williamson v. Williamson, 4 Id. 279; Page v. Cole, 6 Iowa 153; Jackson v. Pierce, 2 John. 221; Adams v. Townsend, Adm'r 1 Met. 484; Davis v. Fair, 26 Verm. 592.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. ^[*]

OPINION

LOWE, J.

First, It is complained that the Court erred in excluding the testimony of Geo. W. Hunt and Daniel Shupe. To understand the merits of the question involved in this assignment it will be necessary to explain the circumstances under which this testimony was offered. On the 23d day of January, 1856, the witness, Hunt, who is the plaintiff in this action, leased, under a written contract, certain premises for the term of five years, to the firm of Hungerford, Wells & Shupe. Under this lease said firm occupied the premises until the month of October, 1857, when Hungerford and Shupe sold out their interest to the defendant, Coe, and thereupon the business was continued on the premises by Coe and Wells as partners until the 23d day of January, 1860, at which time they dissolved and abandoned the premises, being one year short of the time for which the plaintiff had leased the same to Hungerford, Wells & Shupe. To recover the rent (and for some other causes of action), for the last year under the written lease between the original parties, the plaintiff sues Coe and Wells, alleging that they had agreed to take the place of the said Hungerford, Wells & Shupe, in the performance of the covenants of said lease, which had been transferred to them in parol, and which agreement, and transfer he, the plaintiff, expected to prove by the defendants themselves; that they, the defendants, had occupied the said leased premises, paying the stipulated rent therefore up to the time of the abandonment, and that the plaintiff had accepted them as tenants, &c. The defendant, Wells, made no defense, Coe, in his answer, admits the purchase of the interest of Hungerford and Shupe in the business of the firm of Hungerford, Wells & Shupe, and that he and Wells became joint and equal owners of the stock, materials, machinery, &c., and carried on the business jointly, and paid rent, but denies that he used and held the premises under or by virtue of any assignment or transfer of the lease, verbal or written, or with any understanding with the plaintiff and Hungerford, Wells and Shupe, to assume and discharge the obligations of said lease, &c.

It appears from a bill of exceptions in the record, that on the trial of the cause the plaintiff introduces the defendant Wells, who testified to facts tending to prove the verbal contract relied upon by plaintiff to take the case out of the statute of frauds. Afterwards the defendant, Coe, was made a witness by the defense, who contradicted the testimony of the said Wells, and, among other things, testified that he never saw or heard of the lease until about three years after he became the partner of Wells. The plaintiff then offered as witnesses George W. Hunt and Daniel Shupe, by whom he proposed to prove "that defendant, Coe, did know of the lease; that its contents were explained to him by Hungerford, Wells & Shupe, at the time of the purchase, and immediately or very soon thereafter, by the plaintiff, who was called upon by defendant, Coe, for the purpose of having the lease explained." Objections being made, this evidence was not allowed to go to the jury, and, in our opinion, rightfully so. In his petition the plaintiff seeks to recover upon a contract of rent for a term of years, but the Revision of 1860, § 4006, (§ 2409, Code of 1851), says that it is not competent to offer evidence to establish a contract of this kind, unless the same is in writing and signed by the party charged, or by his law-fully authorized agent. No such evidence was offered, for the reason that the contract, if any was made, was a verbal one. The plaintiff, to obviate this objection to the contract, averred in his amended petition (a demurrer to the original having been sustained), that he expected to confirm and verify the contract by the sworn testimony of the defendants. This it was his privilege to do, under § 4010 of the Revision of 1860, (Code of 1851, § 2413,) which makes such sworn admission to a equivalent to a written contract. Upon this point, it seems that the defendants upon being sworn, contradict and neutralize each other's testimony, leaving the plaintiff precisely where he was before they were called to testify with the burden of proof upon him. To meet this exigency of his case, he offers the witnesses, Hunt and Shupe, to prove what? a verbal...