Marsh v. Chown

• Decision Date: 27 January 1898
• Citation: 104 Iowa 556,73 N.W. 1046
• Parties: MARSH v. CHOWN ET AL.
• Court: Iowa Supreme Court

104 Iowa 556

73 N.W. 1046

MARSH

v.CHOWN ET AL.

Supreme Court of Iowa.

Jan. 27, 1898.

Appeal from district court, Tama county; G. W. Burnham, Judge.

This is an action at law for judgment on six promissory notes executed by the defendants to the plaintiff. Defendants filed an answer in two counts, an “amended answer” in three counts, an “amendment to amended answer” in three counts, an “additional amendment to amended answer” in four counts, and at the close of the evidence an “amendment to their answer” in four paragraphs, which last amendment the court struck from the files. These several pleadings are of great length, covering about 14 closely printed pages, and so abound in repetition that it is difficult to gather therefrom the precise defense relied upon. The court might very properly have required the defendants to file a substituted answer, and thereby avoided the confusion that arises from these numerous amendments. The defendants admit the execution of the promissory notes sued upon, and, as we gather from their answer and amendments, allege the following defenses: That the defendant Nettie Chown is the daughter of the plaintiff, and wife of the defendant O. D. Chown, and that the amounts represented by said notes were given to the defendants as advancements made by the plaintiff to his daughter under an agreement that the same were to stand as an advancement to her out of the estate of plaintiff; that said promissory notes were executed long after said advancements were made, and under an agreement that they were to stand as mere receipts to show the amount of said advancements. As another defense it is alleged that, in consideration of said advancements, and that the said amounts should stand as such, and said notes as mere receipts therefor, defendants agreed to take and keep the plaintiff during his life, and make a home for him, and that in pursuance of said agreement defendants moved from their home in Western Iowa to West Irving, Tama county, at the request of the plaintiff, and at great expense to defendants, and did keep and care for the plaintiff, and are now, and always since have been, willing to do so, but that shortly before the commencement of this suit plaintiff, without cause, left the home of defendants; that defendants are willing to carry out their part of said contract. As a defense to the note for $1,000, identified as Exhibit B, defendants allege that in October, 1889, the plaintiff purchased certain real estate in Tama county, and had the title made to his said daughter; that he paid part of the purchase money for said land, which was intended as an advancement to his said daughter, and that long after, at plaintiff's request, defendants executed said note simply to show the amount of said advancements, and that defendants took and retained possession of said land. Defendants alleged that said several agreements were partly oral and partly in writing, the written portion consisting of letters, which letters are lost or destroyed, or in the hands and under the control of the plaintiff. Defendants, by way of counterclaim, ask to recover $1,000 for board, lodging, and washing furnished to the plaintiff during the years 1889 to 1893, inclusive. Plaintiff's demurrer “to first and second counts of defendants' amendment to amended answer as amended, and to original answer, and to the first, second, and third counts of amended answer,” was sustained. Plaintiff, in reply, denies every allegation of said answer as amended, except as expressly admitted. He admits that defendants furnished him with board, and did part of his washing during a part of the year 1889, and all of the years 1890 to 1893, inclusive. He avers that the board and washing done in 1889 was for him as a member of defendants' family, and in consideration of the use of plaintiff's house, in which the family resided, and labor and services performed by the plaintiff for defendants. Also that the board, lodging, and washing done during 1890 to 1893, inclusive, was by virtue of a special written contract set out. The case was tried to a jury, and a verdict returned for the defendants upon their counterclaim in the sum of $500, and in favor of the plaintiff for $1,725. Defendants' motion for a new trial being overruled, judgment was entered upon the verdict, from which the defendants appeal. Reversed.J. J. Mosnat, for appellants.

Struble & Stiger, for appellee.

GIVEN, J.

1. Appellants' first complaint is of the ruling of the court sustaining appellee's demurrer to the answer and amendments. The answer and amendments demurred to alleged that the several amounts shown in the notice were given to and received by appellant Nettie Chown from the plaintiff, her father, under an agreement that the same was an advancement to her by her father in anticipation of her share in his estate. Also that said notes were executed long after said advancements had been made and received, and as mere receipts to show the amounts advanced, and that said agreements were partly in parol and partly in writing, by letters which have been lost, or are in the possession of the plaintiff. The question raised by the demurrer is whether these allegations showed a defense, or, in other words, whether evidence thereof...