Jeffords v. Poor

• Decision Date: 20 November 1947
• Docket Number: No. 817.,817.
• Citation: 55 A.2d 605
• Parties: JEFFORDS v. POOR et al. *
• Court: Vermont Supreme Court

55 A.2d 605

JEFFORDS

v.POOR et al. ^*

No. 817.

Supreme Court of Vermont.

Oct. 7, 1947.

Rehearing Denied Nov. 20, 1947.

Exceptions from Orange County Court; Adams, Presiding Judge.

Action by Percy J. Jeffords, executor of the estate of George T. Colby, deceased, against Francis Poor and another to recover upon an alleged agreement that the defendants would execute to the deceased a note and mortgage. Judgment for the defendants, and the plaintiff brings exceptions.

Judgment affirmed.

H. William Scott, of Barre, for plaintiff.

R. T. Abare, of Barre, and Wilson & Keyser, of Chelsea, for defendants.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

MOULTON, Chief Justice.

This is an action in contract and was tried by the court without a jury. Judgment was rendered for the defendants, and the cause is before us on the plaintiff's exceptions.

The declaration alleges that on or about the first day of January, 1946, the defendants received from the plaintiff's testator a check for $3,485 for the purpose of paying a note secured by a mortgage on their farm, upon an agreement that they would execute to the testator a note for the amount of the check, and a mortgage to secure it; that the note and mortgage were prepared, but the testator died before these documents were executed by the defendants and delivered to him; and that the defendants have not kept their agreement or repaid the money to his estate. The defendants are husband and wife.

According to the written findings of fact Colby, the testator, and the defendants owned adjoining farms. Colby had known the defendant Francis ever since the latter's boyhood and though highly of him. Since he was ten years old Francis had worked for Colby at various times helping in haying, repairing fences, caring for the poultry and marketing the eggs, conveying him from place to place on his business affairs, and generally assisting whenever required. This continued after Francis had married, and during the last year of Colby's life Francis spent about half his time on his farm. The defendant Harriet canned fruit and vegetables for Colby and supplied the jars for this purpose. No pay was ever received by either of the defendants for these services.

The defendants purchased their farm on July 10, 1944, and gave a purchase-money mortgage to their vendors to secure a note of $4,000 at five per cent interest. They also borrowed $4,000 from the testator, who took a chattel mortgage on the stock and tools. At the time of Colby's death this mortgage had been reduced to approximately $1,100.

Colby frequently expressed to several persons his appreciation of what Francis had done for him, his regard for his ability and his desire to help him. He also made statements that he intended to do, or had done, something for Francis, some of the statements being made within a few days of his death.

Some time in January, 1946, Francis told Colby that he planned to get some money from a bank to discharge the note secured by the mortgage on his farm, since he could borrow it at a lower rate of interest than he was then paying. Colby told him that he had some money not in use, and he would take it over himself. On January 31 he called Francis to his house and delivered to him a check drawn to his order for $3,485 which was the amount due on the mortgage note. Francis took the check and paid the note on the same day, and on February 2 had the mortgage discharged on the town records. He then caused the town clerk to prepare a note for $3,485 payable to Colby, to be signed by himself and his wife, and a mortgage to Colby covering the real estate. He showed these papers to Colby, unexecuted, and Colby told him that he did not want them. They have never been executed.

The check given by Colby was for the benefit of both defendants, but Harriet did not participate in the transaction between Colby and Francis, and had no talk with Colby about it, and the Court is unable to find that Francis acted as her agent.

Colby died suddenly on February 7, 1946, at an advanced age, and the plaintiff, having been designated as executor in his will, has been appointed and has qualified as such.

It is found that there was no agreement between Colby and Francis that the defendants would execute and deliver to him a note for the amount of the check and secure it by a mortgage on their real estate. The unexecuted note and mortgage were drawn without Colby's knowledge. It is also found that Colby intended to and did make a gift to Francis of the amount of money represented by the check.

As tending to show that the check represented a loan and not a gift the plaintiff offered in evidence a notation in the handwriting of the testator appearing upon a stub in a book of blank forms for promissory notes, the corresponding form being attached and not filled out. The notation is as follows: ‘Francis & Harriet Poor cash loaned Feb. 1, 1946’. Upon objection by the defendants it was excluded, subject to the plaintiff's exception.

There was no error in the ruling. The offered exhibit is merely a memorandum, and not a charge in book account. No sum of money is mentioned; the date does not correspond to that upon which the check was drawn and delivered, and no testimony was introduced regarding it save that it was found among the testator's papers after his death. Entries that are merely memoranda are not admissible as independent evidence in favor of the party making them, either in his lifetime or in favor of his estate. O'Rourke v. Cleary, 105 Vt. 85, 87, 163 A. 583; Barnes v. Dow, 59 Vt. 530, 547, 10 A. 258, and cases cited.

The plaintiff has briefed exceptions taken to the refusal of the court to comply with his requests to find that Francis acted for himself and his wife in borrowing from Colby the money represented by the latter's check, and in having the unexecuted note and mortgage prepared by the town clerk; and also an exception to the statement of the court that it was unable to find that Francis acted as agent for his wife in connection with the check, note and mortgage. These exceptions may be considered together.

There is no presumption that a husband acts for his wife by her authority, and the relationship of husband and wife does not of itself warrant the inference of such authority, although it is a circumstance entitled to consideration in connection with other circumstances tending to show an agency. Scott, Admr. v. Bradford Nat. Bank, 107 Vt. 226, 232, 233, 179 A. 149; Chadwick v. Wiggin, 95 Vt. 515, 517, 116 A. 74.

The other circumstances upon which the plaintiff bases his exceptions are that the proceeds of the check were used by Francis to discharge the note signed by himself and his wife, secured by the mortgage executed by both of them upon a farm owned by them jointly as husband and wife; and that the unexecuted mortgage and note were so drawn that, if executed, they would be the obligation of both. However, it cannot be said that these facts, which we do not doubt were carefully and impartially considered by the court in reaching its conclusion, Putnam v. Woodard, 111 Vt. 39, 43, 10 A.2d 186, were such as to compel a finding of agency, as a matter of law. The plaintiff argues that it is significant that the defendant Harriet, who was present in court throughout the trial, did not testify in her defense. She was a competent witness, under. P.L. 1695, to meet and explain the testimony of living witnesses produced against her. But even so, any unfavorable inference arising from her silence upon matters which were peculiarly within her knowledge, In re Will of McCabe, 73 Vt. 175, 176, 50 A. 804; State v. Parker, 104 Vt. 494, 502, 162 A. 696, was for the trial court to consider in connection with the other evidence in the case, and it must be assumed that due weight was given to it in making the finding. The foregoing exceptions are not sustained.

An exception was taken to the finding that there was no agreement made by Francis that he and his wife would execute and deliver to Colby a note and mortgage for the sum of the check.

The finding, like all other findings to which exceptions have been taken, must stand if it can be supported upon any rational view of the evidence. Coolidge v. Taylor, 79 Vt. 528, 532, 65 A. 582; Partridge v. Cole, 98 Vt. 373, 375, 127 A. 653; Labor v. Carpenter, 102 Vt. 418, 421, 148 A. 867; University of Vermont v. Wilbur's Estate, 105 Vt. 147, 155, 163 A. 572. Francis was an incompetent witness, but since he was called to the stand by the plaintiff, his incompetency under P.L. 1695 was waived. Comstock's Adm's v. Jacobs, 84 Vt. 277, 281, 78 A. 1017, Ann.Cas.1913A, 679, Id., 89 Vt. 133, 137, 138, 94 A. 497, Ann.Cas.1918A, 465; Green's Adm'r v. Mason...