Mayes v. Turley

• Decision Date: 18 January 1883
• Parties: MAYES, ADM'R, v. TURLEY AND OTHERS.
• Court: Iowa Supreme Court

60 Iowa 407

14 N.W. 731

MAYES, ADM'R,

v.TURLEY AND OTHERS.

Supreme Court of Iowa.

Filed January 18, 1883.

Appeal from Pottawattamie circuit court.

The plaintiff is the duly appointed and qualified administrator of the estate of one Harrison V. Osborn, deceased. As such he brings this action to recover of the defendants for certain money which it is alleged belongs to the estate, and has come into the hands of the defendants, and is wrongfully retained by them. The defendants, for answer, pleaded a general denial. Afterwards they filed an amendment, in which they averred, in substance, that the defendant Louisa J. Turley received the money in question under a contract with the decedent, whereby, in consideration of the money, she was to furnish him a home, and provide him food and clothing, and care in sickness, during the remainder of his life. There was a trial by jury, and verdict and judgment were rendered for the defendants. The plaintiff appeals.Smith, Carson & Hart and F. B. Hart, for appellant.

Sapp & Lyman, for appellee.

ADAMS, J.

1. On the twenty-fifth of June, 1879, the plaintiff's intestate was a pauper, in very feeble health, and an inmate of the poor-house of Pottawattamie county. About that time he received $694 as a pension, which money, with the intestate's consent, passed into the hands of the defendant Louisa J. Turley, wife of the defendant Marshall Turley, and she caused the intestate to be removed from the poor-house, and to be provided for during the remainder of his life, which terminated on the seventh of July following. She claims that she received the money under a contract to provide for the intestate during the remainder of his life, and that she fully performed the contract upon her part.

The plaintiff denies that the record discloses any evidence of such contract. As proving such contract, the defendants rely upon the testimony of one Arthur Mueller, their grandson. He testified in these words: “Mr. Osborn had given my grandfather orders, as I understood, to go down and draw the money. He brought the money up and turned it over to Harry Osborn, and Harry Osborn turned it over to my grandmother. When he handed the money to her he said, ‘You are to take care of me as long as I live.’ My grandmother gave him to understand--answered in the affirmative--that she was to take care of him as long as he lived, whether it was two weeks or two years, and he was never to go back to the poor-house.” The defendants also rely upon the testimony of the defendant Marshall Turley, who, when asked what the arrangement between his wife and the intestate was, testified in these words: “The arrangement was this: Mrs. Turley was to receive the pension money and was to take care of him. * * * Mrs. Turley took the money. He gave it to her and she agreed that he should never go back to the poor-house any more.”

The plaintiff endeavors to meet this testimony by saying that the witnesses are not to be believed; that circumstances were such as to show that the intestate was defrauded; and, at most, that the evidence only shows that Mrs. Turley was to receive the money for safe-keeping, and to be reimbursed from it her reasonable charges. These considerations raise questions which were properly addressed to the jury. They were answered by the verdict, and the verdict, we think, is not without support.

2. The plaintiff, however, contends that the court erred in the admission of evidence. When the defendant Marshall Turley was asked, as a witness, to state the arrangement between his wife and the intestate, the plaintiff objected upon the ground that the witness was a party to the action, and was called upon by the interrogatory to testify to a transaction between the decedent and the witness. The objection was doubtless made under section 3639 of the...