Lee v. Gruschus
| Decision Date | 03 October 1966 |
| Docket Number | No. 7907,7907 |
| Citation | 420 P.2d 311,77 N.M. 164,1966 NMSC 201 |
| Parties | John H. LEE, Claimant-Appellee, v. Jeanine Adams GRUSCHUS, Executrix of the Last Will and Testament of Jack Adams, Deceased, Appellant. |
| Court | New Mexico Supreme Court |
From a judgment allowing appellee's claim against the estate of Jack Adams, deceased, the executrix appeals. Appellee's claim relates to 10 per cent interest in 'net profits' of a highway project designated here as Job 81 allegedly due pursuant to contract. The trial court found the net profits of the job to be $305,416.19, and that appellee was entitled to $30,541.62, less certain set-offs of $6,961.97. Judgment was entered accordingly.
The thrust of the appeal is an attack on the judgment as not being supported by substantial evidence. Specifically, the appellant contends that the claim was not corrorborated as required by § 20--2--5, N.M.S.A.1953, as amended, Ch. 261, § 1, Laws 1959, New Mexico's so-called Dead Man's Statute, which reads:
'In a suit by or against the heirs, executors, administrators or assigns of a deceased person, a claimant, interested or opposite party shall not obtain a judgment or decision on his own evidence, in respect of any matter occuring before the death of the deceased person, unless such evidence is supported by some other material evidence tending to corroborate the claimant or interested person.'
Appellee testified that he was employed by the deceased as superintendent both in the deceased's personal capacity as a general contractor for highway construction and on the Jack Adams Construction Company, Inc.; that the employment agreement provided that appellee was to receive a certain salary and annual bonus, plus 10 per cent of the net profits arising out of projects superintended by him; that the net profits on Job 81 were $305,416.19.
The witness, Floyd Heer, who had been the general office manager and bookkeeper for both Jack Adams and his company and whose duties were to prepare profit sheets on Job 81, testified that the profit computation sheets were regular business records taken from the books of original entry on Job 81 prepared by him, and that the sole purpose of preparing the profit computation sheets was to determine appellee's share of 10 per cent. These sheets were received into evidence as Exhibit 4. The witness, Jack Gruschus, also an employee of Jack Adams, testified that Mr. Heer Kept the Jack Adams Construction Company books on Job 81 and that Mr. Heer and prepared the profit sheets showing the profits on Job 81, and that he, Gruschus, computed therefrom the amount of $35,600.70 due the appellee. Incidentally, the witness Gruschus is a son-in-law of Jack Adams and is the husband of the appellant. Appellee testified that Adams had examined the profit sheets and that he had promised to pay the amount shown thereby. The evidence of Heer and Gruschus is material and goes to the core of the case; it adequately corroborates and supports the claimant's evidence. See Pack v. Wright, 75 N.M. 259, 372 P.2d 831. As to the admissibility of the profit sheets see § 20--2--12, N.M.S.A.1953. Also, see, McCormick, Evidence, § 281 (1954); and 5 Wigmore, Evidence, § 1522 (3d ed. 1940).
Appellant wages an extensive and forceful attack upon the accuracy of the Job 81 profit sheets by comparing them with the profit sheets of Job 80, which joined and was being simultaneously constructed. She points to the testimony of Mr. Heer and Mr. Jack Gruschus wherein they both testified that the deceased had told them that the total cost of both projects would be 'thrown together' in computing appellee's bonus. Job 80 was an 8.301 mile project of the Jack Adams Construction Company and Job 81 was an 8.903 mile project of the deceased in his personal capacity. Both...
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