Richard v. Marshall Cnty. Trust & Sav. Co.
| Decision Date | 21 March 1924 |
| Docket Number | No. 23987.,23987. |
| Citation | 195 Ind. 540,143 N.E. 152 |
| Court | Indiana Supreme Court |
| Parties | RICHARD v. MARSHALL COUNTY TRUST & SAVINGS CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; Adam E. Wise, Judge.
Action by the Marshall County Trust & Savings Company, administrator of the estate of Michael B. Zehner, deceased, against Jacob A. Richard. Judgment for plaintiff, and defendant appeals. Reversed, with directions to sustain motion for new trial.
D. L. McKesson and S. N. Stevens, both of Plymouth, for appellant.
Martindale & Martindale, of Plymouth, for appellee.
This is an appeal from a judgment “that plaintiff, Marshall Trust & Savings Company, administrator of the estate of Michael B. Zehner, deceased, recover of and from said defendant, Jacob A. Richard, a verdict returned by a jury in the sum of $10,781, together with costs,” as modified by the entry of a remittitur of $2,329.67, which was signed by “attorneys for plaintiff” at the time the motion for a new trial was ruled on, and by the re-entry of a judgment “that plaintiffs should have and are hereby given judgment against Jacob A. Richard, defendant herein, for the sum of $8,451.33, together with the costs.”
His motion for a new trial being overruled, the defendant (appellant) excepted and perfected a term appeal, and has assigned that ruling as error. The complaint was in five paragraphs, and demanded payment of certain notes of the defendant alleged to have been held by Michael B. Zehner in his lifetime, and to have been destroyed after his death, and certain sums of money belonging to said Zehner, alleged to have been received by defendant to Zehner's use. The answer was a general denial and a plea of payment.
Michael B. Zehner died in June, 1917, and the cause was tried and the jury was instructed in March, 1921. It appears without dispute that the wife of appellant was one of the children of said decedent.
[1][2] Certain receipts bearing the signature of the deceased were read in evidence which contained recitals that they were the “first payment,” “second payment,” etc. (numbered consecutively), each of which receipts was for the sum of $150, but none of which stated that the payments were made as an annuity, nor that any further payments were to be made. And the only mortgage dated March 26, 1903, that was in evidence purported to secure a note for $2,500, due in ten years, with interest, and contained no express agreement except to pay the sum of money thereby secured, without relief. A witness testified that after the administrator was appointed defendant came to its president and “offered to pay two annuities which it was claimed he owed,” and another witness testified that “the $150 per year that defendant paid was an annuity which he paid decedent for $3,300 that he and his wife got in 1903.” But no agreement or mortgage containing an agreement with reference to an annuity was read in evidence, and there was no evidence that by an agreement in a mortgage or in any other manner the defendant ever promised or otherwise bound himself to pay decedent an annuity of $150 each year after 1902, whether up to the time of the trial, or to the date of his death. At the request of the plaintiff the court gave an instruction to the jury as follows:
“If you should find from a preponderance of the evidence in this cause that Michael B. Zehner in his lifetime gave to his daughter, Ida M. Richard, and his son-in-law, the defendant Jacob Richard, the sum of $3,300, and that the defendant Jacob Richard promised to pay to said Michael B. Zehner, in consideration of making said gift, an annuity of $150 a year each year from and after the date of making said gift, and if you further find that said gift was made in the year 1902, then the court instructs you that the defendant is liable to the estate of Michael B. Zehner, deceased, and the plaintiff is entitled to recover in this action the sum of $150 per year for each year from and after the date of the promise to pay said annuity, less any payments thereof which the defendant shall have proved to have been made by a preponderance of the evidence.”
This was error. Recitals over the signature of the deceased that defendant had paid him sums of money “in full according to agreement” were not evidence that defendant had bound himself to pay additional sums. An offer by defendant in 1917 to pay “two annuities which it was claimed he owed” was no evidence that in 1902, for a consideration, he had promised to pay “an annuity of $150 each year” thereafter. And the testimony that what he did pay was “an annuity” was no evidence that he had become legally bound to pay the same amount for a long series of years, before and after the years in which the payments were actually made.
[3] After the evidence on behalf of the defendant had been concluded, Harry Unger was called by the plaintiff and testified in rebuttal that at a time and place not stated, when the defendant was not shown to have been present, he and another lawyer referred to as Mr. Logan questioned Michael B. Zehner, plaintiff's decedent, with a stenographer sitting by, and that the witness had “a copy of the answers given by” decedent, but not of the questions. And being asked to produce it, he produced a paper which was thereupon introduced and read in evidence, over defendant's objection and exception, without any further showing or identification. The paper had neither title nor signature, and was not certified as being sworn to, and the witness testified that it was a copy which he did not make nor see made. He was not asked and did not testify whether or not the testator ever made another statement which was reduced to writing. Objections which were made to the introduction of this paper included the objections that there was no showing that the original was not in existence, and that it set forth self-serving declarations of the deceased to his lawyer when engaged in a former lawsuit, made ex parte in the absence of this defendant and written down by the lawyer's stenographer. This unsigned and unsworn “copy of the answers” given in defendant's absence to questions not set out, which copy was said to have been made by another than the witness who produced it when the witness was not present, as read in evidence, contained 450 words, related to many subjects, and was self-serving, but did not mention a pocketbook at all.
[4] Counsel for appellee seek to justify the obvious error in its admission as having been invited by appellant, and point to the fact that a witness, in answer to questions asked by counsel for the defendant (appellant), had stated that he “saw a copy of a...
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