Leipird v. Stotler
| Decision Date | 03 February 1896 |
| Citation | 66 N.W. 150,97 Iowa 169 |
| Parties | LEIPIRD v. STOTLER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Cedar county; J. H. Preston, Judge.
Action at law to recover from the defendant the amount of a promissory note executed by his wife prior to her death, and upon account for work and labor performed by plaintiff at defendant's instance and request. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Wheeler & Moffit and R. G. Cousins, for appellant.
Charles W. Kepler, for appellee.
The action is brought to recover from the defendant the amount of a promissory note executed by his wife in her lifetime, and which, it is alleged, has been lost and stolen since the decease of the wife, and for certain work and labor performed by plaintiff as housekeeper for defendant since the death of his wife. It is alleged that the defendant's wife died possessed of a large amount of money, notes, household and kitchen furniture, and a large amount of other property, aggregating in value the sum of $5,000; that no administration was had upon her estate, but that defendant took possession of all of said property, and converted it to his own use. And it is further averred that, after the death of his wife, defendant promised and agreed to pay his wife's note. In the second count of the petition, plaintiff alleged that she performed work and labor for defendant, at his instance and request, from August 16, 1889, up to the middle of November, 1889, the reasonable value of which was $75. The defendant, in answer, states, on information and belief, that some such note as plaintiff describes was executed by his wife during her lifetime, but states that he never saw it, and denies liability thereon; admits that no administration has been had on his wife's estate, and avers that she had no property at the time of her decease, save two lots in the town of Mt. Vernon, which were sold by his wife's heirs, and a few household goods, furniture, and piano, which are exempt to defendant, as surviving householder; denies that his wife left a large amount of property, and avers that he received no part of the consideration for the Mt. Vernon lots, and denies that he has converted any property, owned by his wife, to which he was not legally entitled; denies that he promised to pay the note, and denies liability on such a promise, even if made. He further avers that he paid the doctor's bills and funeral expenses for his wife, and since her death has erected a monument to her memory, and that these expenses largely exceed the amount of the property left by her. And he asks that, if any property of his wife be found subject to execution, the action be abated until administration be had of her estate. The defendant denied in toto plaintiff's claim for services, and said that her services were rendered as a mere gratuity, and that he has already paid her, in money and property and house rent, more than her services amounted to. He also, in an amendment to his answer, denied the execution of the note by his wife. The plaintiff, in reply, admitted having received from defendant the sum of $30, and further pleaded that she indorsed the same upon the note given her by his wife. These were, in substance, the issues on which the case was tried, and the jury found a verdict for plaintiff for the sum of $224.45. The note on which the action is bottomed was for $200, and was executed some time in May, 1888, and drew 8 per cent. interest from that date. The appellant concedes that there is a hopeless conflict in the evidence, and that there is sufficient, if believed by the jury, to warrant the verdict returned. His complaint is of the rulings made by the court during the progress of the trial. The instructions given by the court are not assailed in argument, and we may observe, in passing, that they are even more favorable to the defendant than he was entitled to.
1. The plaintiff testified that after the death of defendant's wife, who was her sister, she lost the note which is the subject of the suit, after she went to work for the defendant, and that she believed the defendant had taken it; that she accused the defendant of having done so, in answer to which accusation defendant said that “I should have every cent of my money...
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