McGrath v. West End Orchard & Land Co.

CourtUnited States State Supreme Court of Idaho
Citation43 Idaho 255,251 P. 623
Decision Date30 October 1926
PartiesMARIE MCGRATH, Administratrix of the Estate of C. J. MCGRATH, Deceased, Substituted in Lieu of C. J. MCGRATH, an Insane Person, by MARIE MCGRATH, Guardian of His Estate, Respondent, v. WEST END ORCHARD & LAND COMPANY, a Corporation, Appellant


1. Wife, seeking to rescind contracts made by husband for purchase of land, had burden of proving husband, at time of making contracts, was unsound in mind.

2. Findings that contracts were void and unenforceable will not be disturbed, where evidence showed insanity of maker at time of making contracts, though jury found he had lucid intervals.

3. Answer, failing to deny that wife bringing action as guardian for insane husband was duly appointed guardian, admitted due appointment.

4. Objection to wife's capacity to sue as guardian of insane husband not being raised by answer or demurrer during husband's lifetime was too late after supplemental complaint was filed alleging wife's appointment as administratrix.

5. Wife's guardianship for insane husband terminates on husband's death.

6. Amendment or substitution of competent party introduces no new cause of action, but relates back to commencement of suit.

7. Under C. S., sec. 6657, court may order necessary parties to controversy brought in.

8. Substitution of wife as administratrix of husband's estate was proper, under C. S., sec. 6657, even though suit was originally instituted by wife as guardian for insane husband without having been regularly appointed.

9. Under C. S., sec. 4666, wife, as husband's administratrix, could sue to recover money belonging to community and paid by husband on contracts without making herself individually party plaintiff.

10. Assignment of error which is not discussed nor supported by citation of authorities will not be considered.

11. Nonexpert testimony is admissible on question of sanity.

12. In action by wife as husband's administratrix to rescind contracts, admitting deposition in jury's absence after witness had been examined as to husband's sanity, if error, held not prejudicial.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to recover moneys paid on contracts. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

Cox &amp Martin, for Appellant.

Marie McGrath had no authority to institute the present action, and the same should be dismissed. (C. S., sec. 7856; McGee v Hayes, 127 Cal. 336, 78 Am. St. 57, 59 P. 767; Martin v. O'Reilly, 81 Okla. 261, 200 P. 687; Martin v. White, 146 F. 461, 76 C. C. A. 671; In re Phillips, 158 Mich. 155, 122 N.W. 554; Sears v Terry, 26 Conn. 273; Jones v. Learned, 17 Colo. App. 76, 66 P. 1071; Tiger v. McCallom, 89 Okla. 249, 214 P. 194; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N.E. 704; Winslow v. Troy, 97 Me. 130, 53 A. 1008; Albright v. Rader, 13 Lea (Tenn.), 574; South Penn Oil Co. v. McIntyre, 43 W.Va. 296, 28 S.E. 922.)

The judgment and decree of the lower court cannot be affirmed, for the reason that the investment made by C. J. McGrath was an investment of community funds. In order to reach the whole of the community investment, in view of the alleged incompetency, it would have been necessary for Marie McGrath, personally, to be a party plaintiff. (Swinehart v. Turner, 38 Idaho 602, 224 P. 74.)

The undisputed testimony established that C. J. McGrath at the time he made the contracts in question knew what he was doing. He was therefore capable of transacting ordinary business when he signed the contracts, and under such circumstances they cannot properly be rescinded. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45; Ratliff v. Baltzer's Admr., 13 Idaho 152, 89 P. 71; Keenan v. Scott, 99 Okla. 63, 225 P. 906; Stackhouse v. Horton, 15 N.J. Eq. 202; In re Dolbeer's Estate, 149 Cal. 227, 9 Ann. Cas. 795, 86 P. 695; Gilmore & Co. v. W. B. Samuels & Co., 135 Ky. 706, 21 Ann. Cas. 611, 123 S.W. 271.)

Expert medical testimony as to the capacity of C. J. McGrath to enter into the contracts in controversy is entitled to little, if any, weight as against the undisputed testimony of those who had dealings with him at the time the business was transacted. (Kelly v. Perrault, supra; Osborn v. Carey, 24 Idaho 158, 132 P. 967; In re Dolbeer's Estate, supra; Burley v. McGough, 115 Ill. 11, 3 N.E. 738; Stackhouse v. Horton, supra.)

Fred E. Butler and Edward C. Butler, for Respondent.

Appellant's objection to the capacity of C. J. McGrath to maintain the action as originally commenced was waived by failure to raise the point either by demurrer or answer during the lifetime of C. J. McGrath. (Anthes v. Anthes, 21 Idaho 305, 121 P. 553, 556; Whitley v. Spokane & Inland Ry. Co., 23 Idaho 642, 132 P. 121; Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073, 1075; C. S., sec. 6693; Forrester v. Southern P. Ry. Co., 36 Nev. 247, 134 P. 753, 48 L. R. A., N. S., 1.)

Upon continuance the substituted party proceeds in all respects as if he had been in the case from the beginning. (1 C. J. 252, sec. 557.)

A plea in abatement cannot be set up for the first time in an amended answer, if the facts were known before the filing of the first answer. (Baker v. Union Stockyards Nat. Bank, 63 Neb. 801, 93 Am. St. 484, 89 N.W. 269; Schauer v. Beitel, 92 Tex. 601, 50 S.W. 931; Eden v. D. M. Osborne, 14 Tex. Civ. App. 314, 37 S.W. 182.)

A distinction is drawn between the substitution of a competent for incompetent plaintiff. (21 R. C. L. 585.)

It is unnecessary to serve notice for appointment of guardian upon a person who has been adjudged insane. (C. S., sec. 1190; Foran v. Healy, 73 Kan. 633, 85 P. 751, 86 P. 470.)

The findings by the judge, who had the benefit of observing the demeanor of witnesses and listening to their testimony, will not be disturbed because of conflict, if the evidence in support of such findings, if uncontradicted, is sufficient to sustain them. (Morrison v. Morrison, 38 Idaho 45, 221 P. 156; Davenport v. Burke, 30 Idaho 599, 167 P. 481.)

A nonexpert may be as able as an expert to make clear mental comparisons between the acts and conduct of a man who was at a given time sound and perfectly competent and his acts at a time when he was laboring under mental disabilities. ( Weber v. Della Mountain Min. Co., 14 Idaho 404, 94 P. 441.)

Idaho recognizes the rule that "a person may be insane on one subject and perfectly sane on another." (Ratliff v. Baltzer's Admr., 13 Idaho 152, 89 P. 152.)

BUDGE, J. Wm. E. Lee, C. J., and Taylor, J., concur.



On October 9 and December 1, 1920, C. J. McGrath entered into three separate contracts with appellant company for the purchase of certain lands, and upon each contract made down payments of varying amounts. Thereafter, in the spring of 1921, McGrath was taken to the state hospital for the insane at Orofino. Subsequent to his commitment Marie McGrath, his wife, was appointed guardian of his estate in proceedings had in the probate court of Nez Perce county, and as such guardian, through her attorneys, notified appellant company that C. J. McGrath was insane and incompetent upon the dates the contracts involved herein were entered into and that she refused to be bound thereby, and demanded repayment of the sums advanced under them. Appellant company, by written notice addressed to C. J. McGrath, to Marie McGrath, his guardian, and to her attorneys, advised that by reason of failure to comply with the terms of the contract dated October 9, 1920, the same was canceled and terminated and pursuant to the provisions thereof payments theretofore made would be retained. This action was subsequently commenced by the said guardian to recover from appellant the amounts paid on the three contracts, with interest, upon the ground that at the time of entering into the contracts C. J. McGrath was mentally incompetent and incapable of making a valid contract. To the complaint a general demurrer was filed, and overruled. Answering the complaint appellant denied the incapacity of C. J. McGrath to make a valid contract, and prayed that the action be dismissed.

Before the cause came on for trial C. J. McGrath died. The trial court, upon application, made and entered an order continuing the cause in the name of Marie McGrath as administratrix of the estate of C. J. McGrath, deceased, as plaintiff, and granting plaintiff leave to file a supplemental complaint alleging her appointment as administratrix. A supplemental complaint containing such allegation was thereupon filed.

It appears from the record that an amended answer was filed but withdrawn and a second amended answer filed in lieu thereof after the death of McGrath and the substitution of Marie McGrath, administratrix, as plaintiff, in which latter answer the incapacity of C. J. McGrath to make the contracts was denied, as was also the appointment of Marie McGrath as guardian of the estate of C. J. McGrath. The second amended answer affirmatively alleged that the McGraths had been guilty of laches by failure timely to rescind the contracts and that the same had been ratified.

Upon the issues made by the complaint, supplemental complaint and second amended answer the cause was tried before the court with a jury sitting in an advisory capacity on the question of the sanity of McGrath. Evidence was introduced by both sides upon the issue as to the sanity of McGrath during the times of making of the contracts, and upon interrogatories submitted to it the jury found that at the time he...

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    ...Boise King Placers Co., 26 Idaho 290 at 299, 142 P. 1073; Thelen v. Thelen, 32 Idaho 755 at 756, 188 P. 40; McGrath v. West End Orchard & Land Co., 43 Idaho 255 at 263, 251 P. 623; Younie v. Sheek, 44 Idaho 767, 260 P. 419; Jutila v. Frye, 9 Cir., 8 F.2d 608 at Respondent and Mr. Field were......
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