Quayle v. Mackert

• Citation: 447 P.2d 679,92 Idaho 563
• Decision Date: 25 November 1968
• Docket Number: No. 10172,10172
• Parties: Manx D. QUAYLE, Plaintiff-Respondent, v. Fred J. MACKERT, Administrator of the Estate of Emil Booth, Deceased,Defendant, and Anna Buth, widow of Hermann Willy Franz Buth et al., Defendants-Appellants.
• Court: United States State Supreme Court of Idaho

Page 679

447 P.2d 679

92 Idaho 563

Manx D. QUAYLE, Plaintiff-Respondent, v. Fred J. MACKERT, Administrator of the Estate of Emil Booth, Deceased,Defendant and Anna Buth, widow of Hermann Willy Franz Buth et al., Defendants-Appellants.

No. 10172.

Supreme Court of Idaho.

Nov. 25, 1968.

Nels T. Sahl, St. Anthony, for defendants-appellants.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for plaintiff-respondent.

Ralph Litton, St. Anthony, for Fred J. Mackert, defendant.

McQUADE, Justice.

Plaintiff (respondent), Manx D. Quayle, brought this action against defendant Fred J. Mackert, administrator of the estate of Emil Booth, deceased, requesting the court to impress a trust upon certain real property of the estate, to force conveyance of title to the property to the respondent, and to quiet title in the respondent.

The subject of the controversy in this case is an eighty acre farm described as 'Lots one and two of Section Seven, Township Seven North, Range Forty East of the Boise Meridian' Fremont County, located west of St. Anthony, Idaho, in the Egin Bench area. From about 1918 to 1932 this farm was owned by Ernest Quayle, the father of Manx D. Quayle (respondent). In 1932, respondent acquired title to the farm from his father. In 1934, Manx Quayle placed two mortgages totaling $6,600 on the farm. By 1936, the Federal Land Bank of Spokane was threatening to foreclose on these mortgages.

Appellants, who intervened as parties defendant to the action, are relatives of Emil Booth, now deceased. Emil Booth emigrated from Germany to the United States and to Fremont County, Idaho, in 1905 and began farming with Ernest Quayle. Booth lived in the Quayle household and owned in partnership with the elder Quayle 320 acres of land separate from the farm here in question. From 1932 until his death in 1937, the elder Quayle was bedridden in Salt Lake City, Utah, and the 320 acres were lost by foreclosure in 1936. From 1932 to 1936 the farming operations were carried on by Emil Booth and Ernest Quayle's three sons, Joseph, Tom and respondent Manx Quayle. In 1936, with the 320 acres lost and the Federal Land Bank threatening to foreclose upon the eighty acres here in question, the Quayle brothers decided to break up the farming partnership and to go their separate ways.

Accordingly, the brothers sought to sell the eighty acre farm in order to pay off their farming debts. Joseph Quayle, on instructions from respondent Manx Quayle, offered the farm to Emil Booth, but Booth said to look elsewhere for a buyer first and to let him know what happened. Thereafter a neighboring farmer, one Dean Orme, offered to buy the eighty acres at $160 per acre by assuming the $6,600 mortgage and paying the $6,200 balance in cash.

Joseph Quayle was permitted to testify over appellants' objection that in the fall of 1936, he, Emil Booth and respondent Manx Quayle met in the farmhouse and agreed that despite this offer from Dean Orme, the eighty acres would be sold to Emil Booth for $11,000: $1,100 down, delivery of a purchase money mortgage for $3,300, and assumption of the existing mortgages of $6,600. Joseph Quayle was permitted to testify over appellants' objection that Manx Quayle accepted $1,800 less for the farm because Emil Booth said, 'after I die it'll revert back to Pete (Manx Quayle),' and '(to keep the farm in the family) I'll leave it to Pete.'

After this, the Quayle brothers went their separate ways. Respondent Manx Quayle went to California, joined the Merchant Marine, and served in the Navy until 1946. In 1946, respondent returned to the Booth farm and farmed with Booth until 1966 when Emil Booth died intestate at the age of eighty-six.

The district court, sitting without a jury, found that the eighty acre farm was deeded to Emil Booth in 1936 in reliance upon his oral promise to devise the farm to Manx Quayle on his death; that the consideration for this promise was respondent's forbearance to accept Dean Orme's offer of $1,800 more than Booth could pay; that Manx Quayle performed his part of the oral bargain but that Emil Booth breached his part of this agreement when he died intestate on April 17, 1966, owning the farm in fee.

The district court concluded therefore that the farm could not pass by intestacy to Booth's heirs in West Germany but was held in constructive trust by Fred J. Mackert, administrator, for the benefit of respondent Manx Quayle. The district court ordered the farm conveyed to respondent.

Appellants assign various errors in the admission of evidence. The most critical of these involves the application of the so-called Dead Man's Statute to testimony of respondent's brother, Joseph Quayle. Appellants contend that the court erred in permitting Joseph Quayle to testify about the conversation among Emil Booth, Joseph Quayle and Manx Quayle at the farmhouse in the fall of 1936.

I.C. § 9-202(3) as amended by Sess. Laws 1965, ch. 113, § 1, p. 219, provides as follows:

'Who may not testify.-The following persons cannot be witnesses:

'(3) Parties * * * to an action or proceeding * * * against an * * * administrator, upon a claim or demand against the estate of a deceased person, as to any communication or agreement, not in writing, occurring before the death of such deceased person.' (Emphasis added).

Section 2 of Sess.Laws 1965, ch. 113, declared that 'the amendment incorporated herein (italicized above) shall be applicable only to those claims or demands against the estate of a deceased person arising subsequent to the effective date of this act (, March 11, 1965).' The amendment displaced the words 'any matter of fact.'

We are thus presented with a preliminary question of which version of I.C. § 9-202(3) applies to this case. The answer to this question depends in turn upon when Manx Quayle's claim against the estate of Emil Booth arose. A contract to make a will is not breached until the promisor dies intestate. ¹ Only then does a cause of action arise in the promisee, since only then is it certain that a will can never be made as promised. In the instant case, Emil Booth died intestate on April 17, 1966, after the effective date of the amendment to I.C. § 9-202(3). That is when respondent's claim against the estate of Emil Booth arose, and therefore I.C. § 9-202(3) as amended in 1965 applies to this case.

This statute expressly applies only to 'parties or assignors of parties * * * or persons in whose behalf an action * * * is prosecuted.' This class of persons is disabled from testifying. The terms include both parties as defined by the rules of civil procedure and real parties in interest. Joseph Quayle, though he is the brother of respondent Manx Quayle, is neither a party to this action nor real party in interest. He has no economic interest in the farm which is the subject of this controversy. Until deeded to Emil Booth in 1936, the farm was owned by Manx Quayle alone. This action was not prosecuted on behalf of Joseph Quayle. It is true that Joseph Quayle would be interested in seeing his brother acquire the farm, but the statute does not disable those persons with a familial interest from testifying. Therefore, Joseph Quayle was properly allowed to testify as to any matter relevant to this controversy. Each and every case cited to us as authority for disabling 'interested witnesses' from testifying applied the statute not against witnesses but against parties only. ²

Appellants objected at trial to Joseph Quayle's testimony about Dean Orme's offer to buy the farm. Admission of this testimony is said to be contrary to I.C. § 9-202(3), but, for the same reason that the statute applies only to parties, this testimony also was properly admitted. Appellants objected to this repetition by Joseph Quayle of Dean Orme's offer to contract to purchase the farm as hearsay as well. But this objection was properly overruled because the hearsay rule does not apply to statements offered not for their truth but merely for the purpose of showing that certain words were spoken. ³ Thus, whether true or not, the offer of Dean Orme was admissible for the purpose of showing that Manx Quayle thought he had an offer which he might forbear to accept. The relation of this offer to the problem of whether there was consideration for Emil Booth's promise is discussed below.

Appellants also assign error to the court's admission of respondent's testimony as to 'any matter of fact' occurring before the death of Emil Booth. Appellants contend that this was contrary to I.C. § 9-202(3). Respondent Manx Quayle is admittedly a 'party' under the statute. But we have already decided that the statute in its present form applies to this action. Therefore, respondent is disabled from testifying only about 'any communication or agreement, not in writing,' occurring before the death of Emil Booth. The district judge sustained appellants' objections to all of the questions put to Manx Quayle designed to bring out testimony on the agreement allegedly reached at the farmhouse in the fall of 1936. Thus, the statute was satisfied. A party is not prevented under the terms of I.C. § 9-202(3) from testifying as to matters of fact other than those relating to communications or agreements not in writing. All of appellants' cases cited to us for the contrary proposition are not in point because they construed the prior version of I.C. § 9-202(3) barring statements by parties 'as to any matter of fact.' ⁴ That version is not applicable to this case.

At the trial of this case, respondent Manx Quayle offered, and the court admitted, testimony of various neighboring farmers and businessmen to the effect that Emil Booth said he would leave the farm to Manx Quayle. ⁵ Appellants' counsel objected to Manx Quayle. ⁵ Appellants' counsel objected of I.C. § 9-202(3) and remoteness, but as these witnesses were not parties and as they were disinterested as well, the statutes plainly does not apply. Nor can we say that the testimony was on matters...