Roth v. Headlee

• Decision Date: 16 December 1947
• Docket Number: 47102.
• Citation: 29 N.W.2d 923,238 Iowa 1340
• Parties: ROTH v. HEADLEE et al.
• Court: Iowa Supreme Court

29 N.W.2d 923

238 Iowa 1340

ROTH v. HEADLEE et al.

No. 47102.

Supreme Court of Iowa

December 16, 1947

Joseph C. Picken and John E. Holmes, both of Des Moines, for appellant.

Lehman Hurlburt, Hossfeld, Blanchard & Cless, of Des Moines, for appellees.

GARFIELD Justice.

In effect plaintiff-appellant asserts the question presented to us is whether there is sufficient evidence to warrant the allowance of his claim. This is a misconception. The action was tried at law without a jury. It is not reviewable here de novo but only upon the errors assigned. Rule 334, Rules of Civil Procedure; In re Hoenig, 230 Iowa 718, 720, 298 N.W. 887 889; Anderson's Estate v. Stason & Knoepfler, 216 Iowa 1017, 1019, 250 N.W. 183, and citations. The decision below on the facts has the force and effect of a jury verdict. Rules 334, R.C.P.; Estate of Gollobit, 231 Iowa 1074, 1075, 3 N.W.2d 191, 192; In re Estate of Evans, 228 Iowa 908, 919, 291 N.W. 460. It was for the trial court to determine the credibility of witnesses and the weight of the evidence. In re Estate of Martens, 226 Iowa 162, 165, 283 N.W. 885; Murphy v. Callan, 199 Iowa 216, 219, 199 N.W. 981.

It follows that the trial court's decision on the facts must stand unless plaintiff was entitled as a matter of law to have his claim established or, stated in another way, unless plaintiff would have been entitled to a directed verdict if there had been a jury trial. Precedents are obviously not applicable which hold there was sufficient evidence in a particular case to support the trial court's allowance of a claim. They would be relevant if plaintiff had won his case below and defendants were here challenging the sufficiency of the evidence to support the adjudication.

Except on the issue of payment and other affirmative defenses, the burden rested on plaintiff to prove his claim by a preponderance of the evidence. Defendants are mistaken in asserting the proof must be clear, satisfactory and convincing. That requirement prevails in an action in equity to enforce an oral contract of a decedent to convey real estate but does not apply to such an action as this. In re Estate of Dolmage, 204 Iowa 231, 213 N.W. 380; In re Estate of Newson, 206 Iowa 514, 524, 219 N.W. 306; In re Estate of Stratman, 231 Iowa 480, 487, 1 N.W.2d 636, 642; In re Estate of Karr, 235 Iowa 351, 360, 16 N.W.2d 634, 638.

In the absence of an admission by the adverse party, it is not often that one who has the burden on an issue establishes his claim as a matter of law. Kellogg v. Rhodes, 231 Iowa 1340, 1342, 4 N.W.2d 412, 413, and citation. Such a claim as this is not necessarily established because the evidence is not denied. In re Estate of Rich, 199 Iowa 902, 917, 200 N.W. 713, and citations; In re Estate of Karr, supra. Plaintiff's evidence must still stand the test of credibility. Circumstances showing improbability, unreasonableness or inconsistency may be sufficient to raise a conflict in the evidence. Baker v. General Am. L. Ins. Co., 222 Iowa 184 189, 268 N.W. 556, and citations.

A verdict should be directed where: 1. But one reasonable conclusion can be drawn from the proof. 2. The facts are clearly established by unconflicting evidence. 3. There is no substantial evidence to overcome a prima facie case. 4. By giving the opposite party the benefit of the most favorable view of the evidence the verdict against him is demanded. Kern v. Kiefer, 204 Iowa 490, 492, 215 N.W. 607, 608, and citations; Baker v. General Am. L. Ins. Co., supra; Gregg v Middle States Co., 228 Iowa 933, 957, 293 N.W. 66, 132 A.L.R. 415. We think the proof here is not such as would have entitled plaintiff to a directed verdict upon trial to a jury and that there must be an affirmance.

Decedent, who lived in Des Moines, was 84 when he died in July, 1945, owning a farm in Monroe county, another in Keokuk county, a home in Des Moines, personalty of about $12,000 in value in addition to $20,000 of government bonds. His hearing and eyesight were poor. Plaintiff's claim filed August 1, 1946, as amended on October 1, fills over nine pages of the record. It alleges that about March 1, 1928, decedent employed plaintiff to aid him in managing, selling and exchanging his property and collecting obligations due him, for an agreed consideration of half the increase in value of the property plus a reasonable monthly salary alleged to be $150 and also 5 per cent of gross rents, sales and collections; plaintiff accepted the employment and rendered such services through the period from March 1, 1928, to March 1, 1943; compensation received by him totaled only $610, part of the commissions due him on rentals, leaving a balance claimed of $31,180.

At the conclusion of the evidence in November, 1946, plaintiff filed an amendment to his claim to conform to the proof in which he alleges he performed services for decedent as requested by him, from March 1, 1932, to March 1, 1943, at a regular monthly salary of $150, and there is now due plaintiff from defendant-executors $19,800 with interest. Plaintiff says in argument this amendment was intended to eliminate the claim for 5 per cent commissions.

The testimony, much of it in question and answer form, fills only about 13 pages of the record. Plaintiff did not testify. The explanation offered is that he was an incompetent witness under the dead man statute, section 622.4, Code 1946. While this statute prohibited his testimony in regard to any personal transaction or communication between him and decedent, and made it more difficult for plaintiff to prove his claim (see Soderland v. Graeber, 190 Iowa 765, 775, 180 N.W. 745), it did not prevent him from testifying to other matters, such as his observations (In re Estate of Talty, 232 Iowa 280, 282, 5 N.W.2d 584, 585, 144 A.L.R. 859, 861, and citations) or the preliminary facts required for the authentication of books of account, the admissibility of which is permitted by section 622.28, Code 1946. In re Estate of Cummins, 226 Iowa 1207, 1209, 286 N.W. 409, and citations.

There is no direct evidence of an employment agreement. It is true such an agreement may be established by circumstantial evidence. Maasdam v. Estate of Maasdam, 237 Iowa 877, 890, 24 N.W.2d 316, 322, 323 and citations; Feltes v. Tobin, 187 Iowa 11, 22, 171 N.W. 739; 20 Am.Jur., Evidence, section 1189. But the circumstantial evidence here consists largely of oral declarations and admissions of decedent several years before the trial together with some testimony plaintiff accompanied decedent and assisted him at various times.

Evidence of such oral statements of decedent should be closely scrutinized and cautiously received because it is not susceptible of denial and the witnesses may not have been capable or desirous of accurately relating what decedent may have said. In re Estate of Strake, 224 Iowa 109, 113, 275 N.W. 490; In re Estate of Rich, 199 Iowa 902, 916, 917, 200 N.W. 713, and citations; Sharpe v. Wilson, 181 Iowa 753, 768, 161 N.W. 35; 31 C.J.S., Evidence, § 266; 20 Am.Jur., Evidence, section 1196, page 1048. See also VanderZyl v. Muilenberg, Iowa, 29 N.W.2d 412, 414.

One Denburger, a real estate broker in Oskaloosa, testified he had known plaintiff and decedent since about 1938 and saw them a number of times down to 1940 regarding sale of one of decedent's farms; plaintiff and decedent were together when the farm was listed with witness and when the sale was closed; decedent said plaintiff was working for and helping him; in 1942 witness asked decedent in plaintiff's presence if plaintiff was not a very valuable man to him and decedent said: 'Yes, he could not get along without Mr. Roth (plaintiff), the condition I am in. He can well afford to work for me because I pay him good. I pay him $150 a month and commissions of five per cent. He will be taken care of.' (The inference from part of the above is that wages and commissions were paid as they were earned and not left to accumulate.) Witness understood decedent to say Roth was helping him in all his work. In 1943 plaintiff helped decedent down the steps to witness's office.

Mrs. Molyneux was the wife of a tenant on one of decedent's farms from 1932 to 1942. She said plaintiff and decedent were there when the farm was rented and about 10 [238 Iowa 1346] to 12 times a year thereafter; perhaps six to eight times during the tenancy another person accompanied decedent; plaintiff was there at times without Reed (decedent), supervising the business, repairs, renting the place; Reed always depended on Roth; decedent and plaintiff talked over matters together; Roth looked after the grain rent and repairing the barn. The tenant testified to much the same effect but in less detail.

The...