Hutton v. Doxsee

• Decision Date: 11 February 1902
• Citation: 116 Iowa 13,89 N.W. 79
• Parties: HUTTON v. DOXSEE.
• Court: Iowa Supreme Court

116 Iowa 13

89 N.W. 79

HUTTON

v.DOXSEE.

Supreme Court of Iowa.

Feb. 11, 1902.

Appeal from district court, Jones county; H. M. Remley, Judge.

Plaintiff filed a claim against the estate of M. H. Hutton, deceased, for work and labor performed at the instance and request of said Hutton, and, in a second count, for damages growing out of the deceased's failure to comply with a contract, whereby he (the deceased) agreed upon a sufficient consideration to deed plaintiff a farm in Jones county, Iowa. The administrator denied the claim, and pleaded a counterclaim for the use and occupation of the farm. The case on the issues thus joined was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Reversed.W. S. Chamberlain and Park Chamberlain, for appellant.

M. W. Herrick and Ellison & Ercanbrack, for appellee.

DEEMER, J.

Plaintiff claims that the deceased, who was his father, on or about September 18, 1885, agreed to give him a farm in Jones county, which the deceased then owned, as his portion of the father's estate, if he (plaintiff) would remain upon and cultivate it, pay taxes and interest on a $3,000 mortgage, which deceased then contemplated placing on the land, and after the death of the father pay certain heirs the sum of $900; that he entered into the possession of the farm under this agreement, and has ever since been in the possession thereof as owner; that he has paid the taxes on the land, improved it, paid interest on the mortgage which was thereafter executed, and devoted his entire time to the management and control of the premises, using all of the income, except a small amount for clothing and board, in the payment of taxes, interest, and improvements as aforesaid; that, notwithstanding he performed all of his part of the agreement, his father failed and neglected to deed him the farm, or to will the same to him, that he might have title thereto as agreed. In the first count of the claim plaintiff sought to recover compensation for labor performed for his father, at his instance and request, from the year 1884 down to the time of his death, April 8, 1899. This count of the petition or claim was not submitted to the jury, the trial court holding, in effect, that there was not sufficient evidence to support it. We have stated it to the end that what follows may be better understood. The administrator denied both the express and the implied contract pleaded by plaintiff, and further pleaded the counterclaim mentioned in the initial statement of the case, in which he asserted that plaintiff took possession of the farm under an agreement with his father, whereby he (plaintiff) was to pay interest on the mortgage and taxes for the use of the farm, which he neglected to do, and that there was due from him on this agreement the sum of $600 at the time of the father's death. The case comes to us on assignments of error presenting the correctness of certain rulings on the admission and rejection of evidence, of the instructions given and refused, and of the ruling on the motion for a new trial.

Addressing ourselves to these rulings, we find that according to the undisputed evidence M. H. Hutton, the father, lived on the Jones county land until about the time of the death of his first wife, in the year 1885, when he moved to the state of Nebraska, leaving plaintiff, his son, and his daughter, Laura Gee, and her husband, L. L. Gee, upon the land. The father married a second time after his removal to Nebraska, and resided in that state until his death. He died intestate, leaving his second wife, a widow, and plaintiff, Martha Clark, and Philander Hutton, sons and daughters, and Bessie Gee and two children of Caroline Hutton Lapham, grandchildren, as his only heirs at law. From 1885 to 1888 plaintiff and L. L. Gee lived upon and cultivated the Iowa farm, and had the proceeds thereof, less the taxes, which they paid. In the latter year Gee and wife left the farm, but plaintiff continued to use and occupy the same until the father's death. After moving to Nebraska, the elder Hutton made a mortgage of $3,000 on the Iowa farm, which bore 8 per cent. interest. Plaintiff has paid some of the interest on that loan, but not all, as we understand it. He also made improvements on the premises. There is no doubt about plaintiff having been in the possession of the farm during the years mentioned, and the real question in the case is as to the nature of that possession. On the one hand it is insisted that plaintiff was to have the farm on conditions claimed, and on the other it is contended that he was simply to have the use of it. In response to pertinent questions plaintiff was permitted to testify, over defendant's objections, that he had been in possession of the premises from the time his father left the state in 1885, excepting the two first years that Mr. Gee was with him on the place; that there was a mortgage put on the place, executed to one M. M. Benedict, in 1888, and that he paid interest on said mortgage; that he paid all the interest that has been paid on the Benedict mortgage; “that every dollar I have had from the proceeds of the place, excepting my own keeping, has went to pay interest, and has been spent on the place; that he had paid interest on the Benedict mortgage at a bank to one J. B. Smith, in whose care the mortgage was left; that he had to keep up the fences, and pretty near everything a fellow had to do on a farm; that he only expended about $15 of $20 per year for clothes, and that his board and a little tobacco was all he ever got from the place.” The objections were to the competency of the witness under section 4604 of the Code. Doubtless, this evidence was inadmissible under the first count of the petition, which sought to recover compensation for labor performed. But, in view of the conceded facts, we think it was admissible under the second count, or, if not, that no prejudice resulted. The payment of the interest on the $3,000 mortgage, which was made to Benedict, was not a personal transaction with the deceased. True, the original mortgagee, M. M. Benedict, was dead, and the mortgage is now owned by F. M. Benedict, but the action is not against Benedict, his heirs, representatives, or assigns; hence the statute does not apply to transactions with M. M. Benedict. Clark v. Ross, 96 Iowa, 402, 65 N. W. 340. Taking possession of the farm and making improvements thereon was not a personal transaction with the deceased. Dysart v. Furrow, 90 Iowa, 59, 57 N. W. 644;Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69;McElhenney v. Hendricks, 82 Iowa, 657, 48 N. W. 1056;Walkley v. Clarke, 107 Iowa, 454, 78 N. W. 70. Under the rule announced in Ballinger v. Connable, 100 Iowa, 121, 69 N. W. 438, the testimony was perhaps inadmissible under the first count, but not under the second. The matters referred to with reference to the possession and occupancy of the farm related to facts ascertainable from observation alone, and were in no sense transactions with Hutton, the deceased.

One Sinclair was a witness for plaintiff, and testified to various conversations had with deceased prior to his death, regarding the Iowa farm. The abstract contains this record: “I asked him if he was going to sell the farm. ‘No, sir,’ he said: ‘I have bargained the farm to Wesley, and I have to borrow $3,000.00 from Mr. Benedict, and I have to put it in lands in Nebraska, which I consider my share. I want Wesley to pay that mortgage, and pay $500.00 to Mate [who was his sister], and $200.00 to each of the girls of Laphams, and Laura, Mr. Gee's wife, has had her share.’ (The administrator moves to strike out the latter part of the answer as immaterial. The motion overruled, and the administrator excepts.)” We do not have the question propounded nor the answer given to that question, and have no other means of knowing what is referred to than appears in the foregoing quotation. Manifestly, it is so indefinite that we cannot tell what is referred to, except by resort to the argument. This is not sufficient. It must appear from the abstract that the ruling of the court was incorrect. Presumptively, the ruling was correct, and, as a great deal of the latter part of the answer was material, no error appears. At any rate, it was a part of the one conversation had by witness with the deceased, and it was all admissible as explaining what preceded. Code, § 4615, last sentence. The record discloses the following with reference to the examination of another of plaintiff's witnesses: “Q. Do you remember of his saying anything about Mrs. Gee in that conversation? (Objected to by administrator as being immaterial. Objection overruled, and administrator excepts.) A. Why, he said, when he signed that note with her,--when he told her he would sign it, remember,--that he would sign it, but that he hadn't any money to pay it. That he would sign it, and, if he had to pay it, it was her share. Q. That was a note executed by her father for the place she had bought? A. Yes, sir. (The administrator moves to strike out that portion of the answer relating to Laura Gee and the signing of the note as being incompetent and immaterial. Objection overruled, and administrator excepts.)” The following also appears with reference to another witness: “Q. Was there anything further said about it? A. He claimed that his daughter, Mrs. Gee, had had her share. (Objected to by administrator as being immaterial, and the administrator moves the court to strike out the answer as immaterial.) By the Court: Was what you say he said last--was that said at the same time that he said the other? A. Yes, sir. Q. And a part of the same conversation you have been telling? A. Yes, sir. (The above objection of the administrator was then overruled, and the administrator excepts.)” It will be noticed that, save in one instance, there was no ruling on the objections to the questions, but the matter was raised by motion to...