Linnemann v. Kirchner
| Decision Date | 06 July 1920 |
| Docket Number | 31953 |
| Citation | 178 N.W. 899,189 Iowa 336 |
| Parties | AGNES LINNEMANN, Guardian, Appellee, v. GUSTA KIRCHNER, Executrix, Appellant |
| Court | Iowa Supreme Court |
Appeal from Muscatine District Court.--F. D. LETTS, Judge.
APPELLEE has verdict and judgment against the said estate, on a claim that C. B. Kirchner, in his lifetime, made verbal contract to pay for the support and education of the said wards of appellee. Hence this appeal.--Reversed and remanded.
Reversed and remanded.
F. W. & Louise Eversmeyer and J. F. Devitt, for appellant.
Hoffman & Hoffman and Dawley, Jordan & Dawley, for appellee.
I.
There are 92 "errors relied on for reversal," and 61 brief points. The two fill 56 pages of print. The argument of the appellant upon these covers 118 pages; the reply brief, 31 pages. This is not said by way of criticism. We have no desire to interfere arbitrarily with the conception that counsel have of their duty to their client, nor with their method of presentation. It is said to explain why it is impossible, within the reasonable limits of an opinion, to go into a detailed consideration of all the points raised,--said to justify our limiting consideration to what seems to us to be of outstanding importance, and to matters that may require consideration on another trial.
II. Appellant says that plaintiff does not assert the alleged contract was made with her as guardian; that she pleads it was made with her as an individual; and that she has made no assignment to the guardian. Upon this, it is urged that plaintiff is not the real party in interest. We hold the point is not well made, if for no other reason than that either the maker or the beneficiary of a contract made by one for the benefit of the other has standing to sue on such contract.
III. The claim of appellee is that one Kirchner, now deceased, orally agreed to support and educate the minor wards of appellee. We hold that such claim is not barred by Subdivision 6 of Section 3447 of the Code. If the contract alleged was made, it is not yet completed by either party to it. The children are still to be cared for. Money is still to be expended. Appellee could have deferred the beginning of action until the contract had been entirely performed. It is, therefore, manifest that, though she asked for an allowance to carry out the contract completely, and did so more than five years after the contract was made, the statute does not bar her. The alleged promise is not within the statute of frauds. Therefore, the court rightly struck out of the pleadings the conclusion that the contract relied on "would be invalid for the reason that parol evidence is incompetent to establish such contract as the guardian attempts to set up." The citations of appellant are cases of a naked promise to meet the obligation of another. If the contract alleged here was made, the promisor did not undertake to discharge the obligation of another, but to induce Agnes Linnemann to expend time and money on the request of the promisor.
IV. There is a complaint asserting that the court erroneously struck out Paragraphs 5, 6, 8, and 10 of the answer of defendant. Paragraph 5 asserts the statute of frauds, and its striking off has been disposed of. Paragraphs 6, 8, and 10 were not stricken at all.
V. Paragraph 3 of the answer had an allegation that "the contract alleged by plaintiff is so vague and indefinite that it could not be enforced, and denies that said contract has any validity whatever." This was rightly stricken, for being a mere conclusion of law.
VI. No occasion for ordering an election arises where but a single contract is relied on, even if those who speak to its creation differ as to when and where it was made.
VII. One brief point charges error, "for the reason that the court erred in admitting testimony on behalf of claimant over the objection of the executrix, as shown by the shorthand notes of the reporter, taken on said hearing, and in support thereof appellant cites and relies upon the facts and authorities stated in Points 3, 5, 6, 7, 10, 11, 12, 13, and 14 hereof." Another complaint is the court should have sustained that part of the motion for new trial which charged that "the court erred in sustaining objection to testimony offered in behalf of the executrix, as shown by the official report of the shorthand reporter, taken upon the said trial, and in support thereof they cite and rely upon the facts and authorities set out in Points 23, 24, 25, and 26 hereof." Another brief point is, "The court erred in giving the eighth instruction on its own motion to the jury," and that there was like error as to the ninth instruction and the tenth. We have settled that these are too broad and vague to obtain appellate review.
VIII. As to Instructions 4 and 9, no exception was taken. No complaint now made of Instructions 3, 6, 7, 10, and 11 was raised by any exception to the charge. The charge terminated liability on attainment of majority, but failed to say that liability would be terminated by the death of either or both of the children before majority. Appellant complains because such a limitation was not added. The charge was right, as far as it went. The failure to add what should be done if there was a death during minority constitutes a mere paucity, and, as no instruction was offered on the point, that paucity may not now be made the ground for reversal.
IX. The opening statement of counsel for appellee is complained of on the ground that it was an argument on the merits. We have examined the argument set out in the abstract with care, and see nothing in it that makes the permitting it an abuse of discretion. Nor do we feel at liberty to interfere with the discretion the court had, by holding that, as matter of law, the argument went beyond a reasonable and fair statement of what counsel construed that evidence to be which he expected to adduce. In so far as it can be claimed statements made in this opening argument were mere conclusions, there is nothing to consider here, because, as to these, the court sustained objections.
Moreover, it is settled in this jurisdiction that, where there is a reversal on other grounds, the question of misconduct of counsel is a moot one. Davis v. Hansen, 187 Iowa 583, 172 N.W. 1.
Other complaints raise questions that have become moot. It is said that the verdict is contrary to the charge of the court, and that the verdict is excessive. It may not offend in either respect on retrial, even if we assumed it did so now. As to the matter of permitting the claimant to file an alleged new claim after she had largely concluded her evidence and was about to rest her case, and the overruling of motion for continuance on that account, these court actions are very largely discretionary. And they have become moot, because, on the new trial, it will be immaterial that a continuance was refused; and the filing of the alleged new claim will have been made far in advance of the trial.
X. A witness was asked what the decedent said, if anything, "about furnishing money." Objection was made that this called for an objectionable statement and conclusion of the witness, and the objection overruled. There was testimony that the decedent said, "Well, he wanted them educated, he wanted them kept together and raised right," and that decedent was anxious for Mrs. Linnemann to take the children, and that she had responded she didn't know how she could take them; that decedent wanted the children to be kept together, where he could visit them; that he would see Mrs. Linnemann was paid for it; that he would furnish the keeping, and that "he as much as said that, you know." This, also, was objected to for being an objectionable opinion, statement, and conclusion; and the objection overruled. In these rulings, we find no reversible error, but suggest that, on retrial, the witness be not permitted to say, "He as much as said that, you know."
XI. Testimony as to what had reasonably been expended in the maintenance and schooling of these children was rightly admitted. Appellee could not make her case by any one piece of testimony. In the event of her succeeding in showing that the alleged contract was made, the testimony as to the reasonableness of these expenditures would bear on the amount of allowance that should be made. Of course, such testimony avails the claimant nothing, if it shall transpire that she has failed to prove the existence of the alleged contract.
As to the evidence received on what was customary schooling, appellant urges that it should not have been received, because there was no showing as to the surroundings of the parties, nor as to the education or social standing of C. B. Kirchner, throwing light on what he meant by education, if he ever used such a term. No matter what he may have meant by the term, it was still competent to show what it would reasonably cost to educate these children.
XII. There was testimony that, when decedent made the proposal for the care of the children, Mrs. Linnemann said she would have to consult with her husband about it. She was questioned as to whether her husband had agreed that she might keep the children. Objection was made that this called for hearsay, and asked for the conclusion and opinion of the witness. The answer was that the husband felt like the witness did; that they were not prepared to take on any additional expense at that time; but that, when she told him the agreement she had made with decedent, the husband consented, under those conditions, to take the children. A motion to strike urged that this answer was an objectionable conclusion. All these objections were overruled, and we think rightly so. It...
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