Nelson v. Bruce
| Decision Date | 09 December 1931 |
| Docket Number | 5769 |
| Citation | 51 Idaho 378,6 P.2d 140 |
| Parties | C. S. NELSON, Appellant, v. ORA B. BRUCE, Administratrix of the Estate of M. L. BRUCE, Deceased, Respondent |
| Court | Idaho Supreme Court |
EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE-EVIDENCE SUFFICIENCY OF-EXTRAJUDICIAL ADMISSIONS.
1. Evidence as to extrajudicial admissions held not to establish decedent's alleged agreement to pay $40,000, or other specific unpaid sum, for half interest in patent.
2. Where extrajudicial admissions are relied on to establish agreement creating indebtedness against decedent's estate, evidence should be clear and convincing.
3. Evidence in action on alleged contract for purchase of half interest in patent held insufficient to make out case for jury.
4. Evidence held not to establish decedent's alleged agreement to pay plaintiff reasonable amount to invent and construct perforating device.
5. Reasonable value of services in inventing and perfecting patented perforating device cannot be proved by evidence as to plaintiff's earnings in other capacities.
6. Plaintiff's testimony that his services were reasonably worth $1,000 per month held mere conclusion.
APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Everett E. Hunt, Judge.
Action on contract and for wages. Judgment for respondent. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Myrvin Davis, for Appellant.
It is but common sense that a certain statement made by a party in ordinary course of interchange of ideas, or spontaneously bearing on the subject matter of the action should be and is competent evidence for use by his adversary. (Sloss Sheffield Steel Co. v. Sharp, 156 Ala. 284, 47 So. 279; Morgan v. Patrick & Smith, 7 Ala. 185; Southern Ins. Co. v. White, 58 Ark. 277, 24 S.W. 425; Roche v Llewellyn Iron Wks., 140 Cal. 563, 74 P. 147.)
To prove admissions of a party, any of the ordinary modes of proving acts, conduct or speech is applicable, and on such proof of his admissions they stand established and as of controlling weight unless some satisfactory explanation is made by which such effect is counteracted. (Harrison v. Peabody, 34 Cal. 178; Freeman v. Peterson, 45 Colo. 102, 100 P. 600; Laird v. Laird, 127 Mich. 24, 86 N.W. 436; Miller v. Nicodemus, 58 Neb. 352, 78 N.W. 618; Lane Imp. Co. v. Lowder, 11 Okla. 61, 65 P. 926.)
E. W. Wheelan, for Respondent.
Evidence of declarations of a deceased is the weakest kind of evidence. (Clarke v. Roberts' Estate, 38 Colo. 316, 87 P. 1077; DeMonco v. Means, 47 Colo. 457, 107 P. 1107; Johnson v. Moilanen, 23 Ariz. 86, 201 P. 634; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432.)
Evidence of admissions by deceased to third parties does not amount to direct proof of facts claimed to have been admitted by the declaration or admission, and when unsupported by other evidence are insufficient to establish a claim against the estate. (Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; 24 C. J., p. 873, citing Farnsworth v. Fraser, 137 Mich. 296, 100 N.W. 400, and Wise v. Martin, 42 Pa. Super. Ct. 443.)
Appellant brought this action against respondent, as administratrix of the estate of M. L. Bruce, deceased, seeking to recover the value of an interest in a patent sold and assigned by appellant to M. L. Bruce and the reasonable value of services rendered by appellant to M. L. Bruce, after presentation to and rejection by respondent of claim therefor.
In his first cause of action appellant alleges that at the time the patent in question was issued he and Bruce each owned an undivided one-half interest therein; that appellant sold his one-half interest to Bruce who agreed to pay him a reasonable sum therefor, and that the reasonable value of appellant's one-half interest is $ 40,000, no part of which has been paid. By her answer respondent denies that Bruce agreed to pay appellant a reasonable sum for said half interest; that the reasonable value thereof was in excess of $ 500 and that any sum is due appellant, but alleges that Bruce paid appellant the consideration agreed on between them.
In his second cause of action appellant alleges that prior to the issuance of patent he entered into an agreement with Bruce to devise, invent and construct a machine for the purpose of perforating cedar poles and other timber products; that he performed such work during a period of twelve months, completing the same about March 29, 1927; that Bruce agreed to pay him a reasonable amount for such services; that he was paid only the sum of $ 2,000; that the reasonable value of such services was $ 1,000 per month and that there is still due him the sum of $ 10,000. In her answer respondent denies: That the last work was done under said agreement at any time subsequent to March 29, 1926; that Bruce agreed to pay appellant a reasonable amount for his services, except as hereinafter set forth; that appellant expended twelve months performing such work; that any sum in excess of $ 150 per month is the reasonable value of such services and that any sum is due appellant.
As an affirmative defense to each of the causes of action respondent alleges that appellant was employed by Bruce to construct the machine for $ 150 per month as wages for time actually employed in such work, Bruce agreeing to pay actual expenses incurred and appellant agreeing to render all necessary services in connection with the application for patent and Bruce to pay the actual expenses connected with procuring the patent. It was agreed that when the patent was obtained each should own a one-half interest and appellant should assign his one-half interest to Bruce; that Bruce paid all expenses incurred by appellant in connection with the construction of the machine and in securing the patent and paid appellant $ 1800 covering wages at the rate of $ 150 per month, the total of wages and expenses aggregating $ 2,195; that any assignment made by appellant to Bruce was pursuant to said agreement; that thereafter appellant represented to Bruce that he felt he had not been sufficiently paid for services rendered and claimed additional compensation and at that time Bruce paid appellant $ 500 with the understanding and agreement that said sum was received by appellant in full settlement and compromise of all claims of appellant against Bruce. Respondent's answer contains the further defense to each cause of action that the same is barred by the provisions of C. S., sec. 6610.
The cause was tried by the court and a jury. After appellant had introduced his evidence in support of his complaint and rested, respondent made a motion for nonsuit, which was granted. Whereupon judgment was entered, from which judgment this appeal is prosecuted.
No assignments of error are specified by appellant in its brief, as required by Rule 42 of this court. Our previous warnings that this practice "is loose and not to be commended" (Noble v. Harris, 33 Idaho 188, 190 P. 922; Spencer v. John, 33 Idaho 717, 197 P. 827; Price v. Case, 40 Idaho 197, 232 P. 576), still go unheeded. It may be gathered from that portion of appellant's brief denominated "Argument" that he contends that the court erred in granting the motion for nonsuit, and that there was sufficient evidence submitted in support of the allegations of his two causes of action to make out a prima facie case and to withstand the assault of such a motion.
Taking up the first cause of action, if we understand the record correctly, there is no evidence to establish the agreement alleged therein. Such agreement was not in writing but appellant sought to establish it by extrajudicial admissions made by Bruce during his lifetime to certain witnesses who were called and testified to the fact that Bruce had stated in conversations had with them that he owed appellant some money. The testimony of Harry Dreisbach is as follows:
The testimony of E. W. Dreisbach is as follows:
These conversations were had prior to the payment by Bruce to appellant of the $ 500 hereinafter referred...
To continue reading
Request your trial