Josephs v. Briant

• Decision Date: 05 May 1913
• Parties: JOSEPHS v. BRIANT
• Court: Arkansas Supreme Court

157 S.W. 136

108 Ark. 171

JOSEPHS v. BRIANT

Supreme Court of Arkansas

May 5, 1913

Appeal from Lawrence Circuit Court, Eastern District; R. E. Jeffery Judge; reversed.

Judgment reversed and cause remanded.

H. S Ponder, Stuckey & Stuckey and Campbell & Suits, for appellant.

1. The alleged contract was contrary to law. 30 Ark. Law Rep. 417; 29 Id. 517; 97 Ark. 153; 95 Id. 552; 85 Id. 106; 81 Id. 41; 46 Id. 420. It contemplated the violation of the law in the performance thereof. 170 F. 409; 160 Id. 700; 183 Id 719; 188 Id. 450; 200 Id. 219.

2. The claim was not duly authenticated, nor presented for allowance. 30 Ark. Law Rep. 474; 45 Ark. 392; 15 Id. 345.

3. The affidavit is not such as is required by Kirby's Dig., § 114. Nor was a copy delivered to the executor. Ib., § 113.

4. Incompetent evidence was admitted and the court erred in its charge to the jury. 22 Vt. 433; 54 Am. Dec. 83; 2 Fed. Stat. Ann. 123, § 3563.

5. The contract was immoral and contrary to public policy. Cases supra.

L. C. Going, for appellee.

1. The contract was not contrary to law, nor did it contemplate a violation of law. It was simply a contract to secure certain letters.

2. The claim was duly authenticated, proven and notice and copy waived.

3. No incompetent evidence was admitted.

4. The account showed on its face a valid claim.

5. The charge of the court was correct; no errors are pointed out. There was no proof that the contract contemplated a performance in a manner prohibited by law.

OPINION

MCCULLOCH, C. J.

Appellant 's testator, A. W. Shirey, lived at Minturn, Lawrence County, Arkansas, and was assassinated in March, 1910, and appellant qualified as executor of his last will and testament. Appellee, Mai Briant, presented to the executor an authenticated claim against the estate for the sum of $ 10,000, for services alleged to have been performed by her for decedent under a verbal contract with him. The claim was presented in the following form:

"Mrs. Mai Briant account v. the A. W. Shirey Estate. To legal services rendered to the said A. W. Shirey during his lifetime in the suit for divorce in which he was involved, said services being rendered at his request and solicitations.

ACCOUNT.

"To trip from Hope to Minturn, Jonesboro and other places and securing evidence which was used in his said suit for divorce $ 10,000.

"The proof will show that Shirey in his lifetime, and not long before his demise employed Mrs. Briant. to do certain work and on his own motion agreed to pay her $ 10,000."

Then follows an authenticating affidavit duly made before a notary public.

The executor declined to allow the claim, and it was presented to the probate court for allowance.

On appeal to the circuit court from the judgment of the probate court, the case was tried before a jury, and the trial resulted in a verdict in favor of appellee for the full amount of the claim.

The evidence tends to show that A. W. Shirey was an illiterate man of many eccentricities. He belonged to that religious sect or cult commonly known as Spiritualists, and was often made the prey of those who were disposed to take advantage of his credulity by offering aid to him in varied and extensive business transactions and in litigations. He had been married several times, and at the time of the transactions involved in this controversy was living separate and apart from his wife, a young woman whom he had married after he became an old man. A divorce suit had been pending between the two, which had resulted in the court refusing to grant a divorce at the request of either party, and there is evidence tending to show that he contemplated renewing the suit.

The claimant, Mrs. Briant, was Shirey's grandniece, and the testimony which she adduced shows that she was a favorite with him, often visiting his house, accompanied by her daughter, a small child. She formerly resided at Harrisburg, Ark., but at the time of these transactions she was living at Hope.

She introduced in evidence the following letters, which the testimony tends to show were written to her by Mr. Shirey:

"Minturn, Ark.

A. W. Shirey, General Merchandise.

Dear Sweet Niece May:

I send you $ 20.00 come if you will Try what I wrote you i will pay you $ 5,000.00 fore your services And if you success i Will pay you double That. it Is not A big fee fore I have paid that much before. I Hape the dr. Will not care fore helping Me any Thing you want To write since your Enitils and There will be no Danger I look fore you at Onct Bring Hortence to i love Her like you.

Yours Truly,

A. W. Shirey."

"Minturn, Arkansas, Sept. 15, 1909.

A. W. Shirey, General Merchandise.

Dear May

I Received yours of the 8. I have been out on the Fars, Estimating The crops For About A Week past, Is why I did not Acknowledge Receipt of your letter sooner. If it will not In convenience You will be glad to have you Call Maba Hortence Can Eat out of the Skillet A time or two If she Still likes it I want to settle with you when you can come. We find that the cotton here will average no more than 7L OR800 lb 1/4. The corne is AN average Crop.

A. W. Shirey."

"Minturn, Arkansas, Dec. 23, 1909.

A. W. Shirey, General Merchandise.

Dear niece

I did want you to come and spend Christmas with me So we could fix up Business but i am afraid it will not be safe For you to come. it greavs my soult That I am fixed as I Am but it Seams to be my Destiny It may End some Time if it don't i Will hope you are always comfortable and happy If i go first you will not want fore nothing fore you and hortence you Are Like my children you Did what no lawyer could or would do for Me It is worth more Than I told you i would pay. Maybe you can Meet Me in St. Louis when i go to buy spring Goods and we can settle then, I Will give you $ 5,000.00 Then any way and maybe can pay you the other $ 5,000.00 too I mean fore to pay much More than This when my trouble Ends The more happiness In the world The Better it is fore the World and all in it.

Yours Truly,

A. W. Shirey."

The first of the letters, including the signature, was typewritten, but there was some evidence tending to show that it was written on letter paper commonly used by him and was probably his letter.

Other testimony introduced tends to show that prior to this time Mr. Shirey had consulted a woman who claimed to be an adept in the art of fortune-telling or clairvoyance, and that she had induced him to write some letters, addressed to his wife, which contained profane, abusive and threatening language.

These letters were turned over to the woman for the pretended purpose of showing to Shirey's wife to induce or coerce her into a compromise. The letters remained in the possession of the clairvoyant, who resided at Little Rock, and the theory of appellee is that the service to be performed by her in consideration of payment of $ 10,000 was the procurement of the letters from. the woman and their return to Shirey. She testified that she met the woman in Little Rock by appointment and finally induced her to part with the letters in consideration of the payment of the sum of $ 50, and that she (appellee) returned the letters to Shirey by mail from Little Rock.

Appellee introduced as a witness her daughter, who was twelve years old at the time of the trial, and about nine years old at the time of the transaction under investigation. The child testified, in substance, that she accompanied her mother to Minturn for the purpose of visiting her uncle in the spring of the year 1909, and that she was present at a conversation between the two in which an agreement was entered into whereby her uncle, Mr. Shirey, was to pay appellee the sum of $ 10, 000 to get the letters back from Madam Rupert and return them to him, and to get other evidence for him to be used in his divorce case. She testified that the letters were to be used as evidence in the divorce case and. that the agreement was that her mother was to procure the evidence to win the divorce case. She also testified that she accompanied her mother on a trip to Jonesboro and heard her and Shirey talk about getting evidence to win his case. The testimony of the child is copied voluminously in the record and is to some extent contradictory, but she distinctly stated that the letters to be procured were to be used as evidence in the divorce case and that according to the conversation she heard between them her mother was to procure for her uncle evidence to win his divorce case.

Another witness introduced by appellee testified that he had a conversation with Mr. Shirey, in which the latter told him that he would employ appellee to get the letters back from Madam Rupert, and that he later told witness that appellee had gotten the letters and returned them to him; that the letters, if used against him in the divorce case, would prevent him from getting a divorce, and that he wanted to get the letters back in his possession.

Still another witness introduced by appellee testified to conversations with Shirey, in which the latter told him that he had employed appellee to get the letters back from Madam Rupert and was going to "pay her well;" that if she didn't accomplish the things he had asked her to do that he (Shirey) would be ruined; and afterwards Shirey stated to him that he had gotten the letters, and he was going to pay appellee well for the work.

The court permitted appellee to testify, over appellant's objection, as follows:

"Q. How much, if anything, does the estate of A. W. Shirey owe you? A. Ten thousand dollars. Q. Has any portion of it been paid? A. None whatever; no, sir."

After the case had been closed by both sides, appellee was recalled to the witness stand and, over appellant...