Scott v. King

• Decision Date: 06 November 1915
• Docket Number: 19,687
• Parties: J. P. SCOTT, Appellant, v. THOMAS J. KING, as Executor, etc., et al., Appellees
• Court: Kansas Supreme Court

152 P. 653

96 Kan. 561

J. P. SCOTT, Appellant, v. THOMAS J. KING, as Executor, etc., et al., Appellees

No. 19,687

Supreme Court of Kansas

November 6, 1915

Decided July, 1915.

Appeal from Bourbon district court; CHARLES E. HULETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE--Amendment to Pleadings--Judicial Discretion. Rule followed that the allowance or refusal of belated amendments to pleadings is within the sound discretion of the trial court.

2. SAME--Findings on Conflicting Evidence Conclusive. Rule followed that the trial court's findings of fact will not be disturbed on appeal when based upon substantial though conflicting testimony.

3. TRIAL--No Error in Record. Suggestion of trial court's abuse of discretion examined and found groundless.

4. NEW TRIAL--Failure to Present Excluded Evidence in Motion. Rule followed that where excluded evidence is not brought forward and presented on motion for a new trial as prescribed by section 307 of the civil code, the denial of a new trial on account of such excluded evidence is not error.

J. I. Sheppard, James G. Sheppard, and Kate Sheppard, all of Fort Scott, for the appellant; A. M. Keene, of Fort Scott, of counsel.

John L. Connolly, and John H. Crain, both of Fort Scott, for the appellees.

OPINION

DAWSON, J.

This was an action in the district court of Bourbon county wherein the plaintiff, J. P. Scott, sought to enforce an oral contract between him and Thomas Chapman and Lucy Chapman, his wife, by which Chapman and wife agreed that Scott should have a life estate in Chapman's farm in consideration of Scott and his family moving on the farm and caring for Mr. and Mrs. Chapman in their old age.

Thomas Chapman and his wife, Lucy Chapman, lived for many years on a Bourbon county farm. It appears that the wife of the plaintiff was a frequenter of the Chapman home in her childhood and girlhood; that the plaintiff worked for Chapman when he was a young man; that the plaintiff and his wife were married about the year 1875 in the Chapman home, and resided with the Chapmans for about three months; that some years later Scott and wife resided with the Chapmans about a year, and after a lapse of a year the Scotts took up their abode with the Chapmans again for about a year, after which a house was built on the Chapman land in which the Scotts lived for about seventeen years; then the Scotts moved to a neighboring farm, residing there for some time; and during all these years the relations of the Scott and Chapman families were friendly and intimate.

In December, 1903, Chapman and his wife were visiting at the Scott home, and in the presence of Scott and his wife, and their grown daughters, and Mrs. Lucy Chapman, Thomas Chapman said:

"Q. Now state all that was said there by anybody there in the presence of Mr. and Mrs. Chapman? Just what was said and who said it? A. Mr. Chapman said to my father: 'Well Scott, we want you to come back on the place. We want someone we can depend upon, and see that we are cared for in our old days, and if you will come back, I will build another room on the house down there for you and fix it all up for you, and you are to pay me one-third (1/3) of the annual crop, and one-half (1/2) of the hay. You are to repair the fences and I will furnish the repairs, and in regard to the pasture, you are to have all the pasture excepting what I want for my horse and cow, if I keep them, and the orchard, you are to have all the fruit that you want to use, and I reserve the pieplant patch and my garden, and you are to have your private garden, and if you will come back and stay with us until we are dead, the home will be yours and Mahala's (Mrs. Scott).'

"Q. What else was said, and by whom? A. And my father says: 'Well, you have writings drawn up to that effect and I will come back,' and he says, 'There is no use to have writings, for I know you and you know me, and I know you will do what's right, and you know I will do what's right, so father told him he would come." (Testimony of Alma Scott.)

The Scott family returned to the Chapman farm in the spring of 1904, residing in a house near the Chapman residence, and this situation between the parties continued until the death of Thomas Chapman in 1906. Prior to his death Scott and his wife and children did various little services for Thomas Chapman; these might be construed as part of the alleged oral contract between the parties or as mere courtesies and reciprocal civilities between lifelong friends.

Soon after the death of Thomas, his widow, Lucy Chapman, went to California. There is testimony that before her departure she told Scott and his wife that she had made provision for them in her will. She returned from California in March, 1907, and lived in the Scott home for two weeks. Then she requested the Scott family to move into her home, saying:

"'I can not live alone--I want you to move in with me and maintain a home for me. When I am through with it, the home goes to you and Mr. Scott or to Mr. Scott and Mahala.'" (Testimony of Mrs. Scott.)

About this time the Scott family moved into the Chapman home with Mrs. Lucy Chapman. She was by that time a very old woman; she was feeble and afflicted with cancers. She is said to have told the plaintiff frequently:

"Scott, you go ahead with the place just the same as you did in Mr. Chapman's lifetime, for when I am through with this, it belongs to you and Mahala."

And to Mrs. Scott:

"Mahala, you will be well paid for what you do."

Scott and his wife and children continued to render Mrs. Chapman the small courtesies and civilities they had rendered to Thomas Chapman in his lifetime. The testimony tends to show many such services. Mrs. Scott assisted the old lady in cooking, sweeping, dressing and undressing, and dressing her cancers; the Scott family carried in fuel and water for her, occasionally built her fire, made her bed, waited on her when sick, never left her alone at night, and the like services continued until her death in 1912 at eighty-three years of age.

The foregoing summarizes briefly the main evidential facts upon which J. P. Scott bases his claim to a life estate in the Chapman farm.

On the other hand, the record shows that Mrs. Lucy Chapman made a will in 1910 disposing of all her property to relatives. It also shows that on March 1, 1911, J. P. Scott and Mrs. Lucy Chapman mutually executed an ordinary lease for the farm in question for the term of one year, with all the usual recitals, and fixing the rent at $ 200, the half of which was to be paid in advance and acknowledged as paid. It also provided that the plaintiff, J. P. Scott, would peaceably surrender possession, without further notice, on February 28, 1912. The lease also reserved to the landlady, Mrs. Lucy Chapman, "her living room and the building her things are stored in," and also provided:

"Seventh. That in case of sale of said premises during their occupancy by said second party, and purchaser should desire possession, said second party hereby agrees to give up to said purchaser said premises at once, on payment to him of a fair and reasonable compensation for the crops which he may then have in the ground, and if he and the purchaser cannot agree to the amount of such compensation, it shall be left to three disinterested appraisers, of which said second party shall choose one, the purchaser one, and these two shall choose a third one. Their decision shall be final as to the amount to be paid by purchaser to said second party."

The record also shows that for the last two or three years of her life Mrs. Chapman paid the Scotts for the eggs and milk she consumed (probably from the date of her will); that she paid for her washing and ironing; and at one time she said, as testified by Mrs. Scott:

"Well, of course, when she came back from town here, why, of course, she was feeling bad, and I, of a morning, I would go in and carry her breakfast in to her, for she didn't feel like getting up and cooking anything for herself, and she told me, 'Mahala, if you are going to bring me my victuals, you might as well bring me all of my victuals and I will pay you for it,' and she said she would pay me two dollars a week for doing her cooking for her, and I cooked her meals and carried them to her for ten months before she died."

Other more or less significant circumstances were the filing in the probate court of claims by plaintiff and wife against the Chapman estate for sums of $ 1352 and $ 1690 respectively for work and labor. Later these claims were withdrawn, or dismissed by order of the probate court.

The cause was submitted to a jury, which could not agree on a verdict, and they were discharged. Thereupon the defendants moved for judgment on the pleadings and evidence. The plaintiff asked leave to amend his petition...