Smith v. Smith

• Citation: 270 P. 174,39 Wyo. 107
• Decision Date: 11 September 1928
• Docket Number: 1497
• Parties: SMITH v. SMITH [*]
• Court: United States State Supreme Court of Wyoming

270 P. 174

39 Wyo. 107

SMITH v. SMITH ^[*]

No. 1497

Supreme Court of Wyoming

September 11, 1928

Rehearing Denied November 21, 1928.

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by Nellie M. Smith against Julia Smith, as administratrix of the estate of Dwight P. Smith, deceased, in which defendant filed a counterclaim. Judgment for defendant, and plaintiff brings error.

Affirmed.

Corthell McCollough & Corthell, for plaintiff in error.

A fundamental test as to the line between the province of the court and that of the jury is that, when the evidence to a fact is positive and not disputed or questioned, the charge of the court should proceed on that basis, Kahn v. Ins Co., 4 Wyo. 419; Bank v. Kindt, 7 Wyo. 321; various cases illustrate the rule, Fieldhouse v. Leisburg, 15 Wyo. 207; C. B. & Q. R. R. Co. v. Cook, 18 Wyo. 43; Calkins v. Wyo. Coal Co., 25 Wyo. 409; Arp & Hammond Co. v. Packing Co., 33 Wyo. 77; Hartung v. R. R. Co., 35 Wyo. 188; the doctrine that whenever there is any evidence tending to prove an issue it must be submitted to the jury, was repudiated in Boswell v. Bank, 16 Wyo. 161; the rule requiring submission is stated in Collins v. Anderson, (Wyo.) 260 P. 1089; conflict must arise upon controlling facts, Wallace v. Skinner, 15 Wyo. 233; see also Cole v. Ass'n., 124 F. 113; R. R. Co. v. Nelson, 259 F. 156; juries are not permitted, in the face of uncontradicted testimony, to enter the realm of speculation, or indulge in frivolous objections thereto, Ford v. Schall, (Ore.) 236 P. 745; evidence creating a suspicion does not require admission, Holland v. Blanchard, (Tex.) 262 S.W. 97; Thames v. Clesi, (Tex.) 208 S.W. 195; Farneman v. Farneman, (Ind.) 90 N.E. 775; when nothing but inference can be drawn from the evidence, the question is one of law and not of fact, Weed v. Clark, (Me.) 109 A. 8; Carter v. Goff, 141 Mass. 123; no order or judgment can be predicated upon an intention which is concealed, Hansen v. Kirtley, 11 Ia. 565; McDowell v. McDowell's Est., (Vt.) 56 A. 98; Perot v. Cooper, (Colo.) 28 P. 391; correspondence with reference to waiver of decedent's interest, in favor of plaintiff made years after payments have been made, was distinct from payments made, and even if some connection existed justifying an inference from the inference of the donation, such process is not permissible; Rosencrance v. State, 33 Wyo. 360; Horgan v. Indart, 168 P. 953; U.S. v. Ross, 92 U.S. 281; the court erred in not assuming the payments and their proper application and instructing peremptorily as requested by the plaintiff, Gollette v. Knowles, (Mich.) 56 N.W. 218; it was error to permit the jury to apply the payments without reference to the evidence and the law, Nutall v. Brannin, (Ky.) 5 Bush. 11; the statute of frauds should receive a reasonable interpretation to prevent fraud, Mead v. Sheep Co., 32 Wyo. 313; the fact of payments by decedent was admitted; upon that fact, unaccompanied as it was by evidence modifying or controlling the result, the presumption arose that the payments were to be applied to a debt; 1 Greenleaf Evidence 38; Miller v. Miller, (Mo.) 155 S.W. 76; Weed v. Clark, (Me.) 109 A. 8; Bunting v. Allen, 18 N. J. L. 299; Mulready v. Shelton, (Wash.) 248 P. 416; Pears v. Wilson, 23 Kan. 343; Clarke v. Clarke, (Va.) 99 S.E. 664; Kilmer v. Quackenbush, 109 N.Y.S. 444; Nichols v. State, (Nebr.) 65 N.W. 774; Horgan v. Indart, (Nev.) 168 P. 953; only where there is a conflict in the testimony, is the question one for the jury, Penney v. Grant, (Ala.) 79 So. 271; Lewis v. England, 14 Wyo. 128; Becker v. Hopper, 22 Wyo. 237; King v. Beaumier, 26 Wyo. 35; the presumption is that the payment is applicable to an existing debt, Glover v. Patten, 165 U.S. 394; Burton v. Baldwin, (Ia.) 16 N.W. 110; Peabody Coal Co. v. Com., (Ill.) 124 N.E. 603; and to the debt in suit, rather than some other legal obligation, Murphy v. Richardson, 33 Pa. 235; Frick v. Trustees, 99 Ill. 167; Gerasimos v. Wartell's Est., (Mich.) 207 N.W. 919; Light v. Stevens, (Calif.) 103 P. 361; the same rule prevails as to general acknowledgements of indebtedness; they are attributed in law, to the debt proven, 2 Greenleaf Ev. 441; Cook v. Martin, 29 Conn. 63; Martin v. Branhan, 86 Mo. 643; Morrell v. Ferrier, (Colo.) 1 P. 94; Galvin v. O'Gorman, (Mont.) 106 P. 887; Jewell v. Jewell's Est., (Mich.) 102 N.W. 1062; the payments were in fact applied on the debt in the present case; a debtor has the right to apply the payment to any one or more debts, but failing to do so, the creditor may apply it as he pleases; failure of application by either debtor or creditor authorizes application by the court in accordance with recognized rules; the creditor's right extends up to the time of suit; U.S. v. January, 7 Cranch 272; Smith v. Thomas, (Idaho) 245 P. 399; Fagan v. Co., (Mo.) 282 S.W. 135; Archaud v. Bank, (Ia.) 178 N.W. 342; People v. Grant, (Mich.) 102 N.W. 226; Brown v. Scheuer, (Ala.) 97 So. 50; Ramsey v. Warner, 97 Mass. 8; Moses v. Adams, 39 N.C. 42; Keener v. Lloyd, (Kans.) 133 P. 710; the distinction between direct proof and indirect proof of the payments by proof of endorsements alone is important, Ray v. McConnell, (Mo.) 165 S.W. 394; there is a distinction between proof of payment and proof of endorsement of payment, Young v. Alford, (N. C.) 23 S.E. 973; it is the payments and not the endorsements that extend the note, Hastie v. Burrage, (Kans.) 77 P. 268; Rogers v. Robson, (Mich.) 111 N.W. 193; Wade v. Killen, (Ala.) 75 So. 970; the legal effect of acknowledgement or payment made before or after the bar of the statute, is to create a new cause of action, Cowhick v. Shingle, 5 Wyo. 87; Bank v. Maika, 16 Wyo. 141; a creditor may make the application at any time, Hopper v. Hopper, (S. C.) 39 S.E. 366; Bank v. Harris, (N. C.) 1 S.E. 459; there is no inconsistency between a motion for judgment and a motion for a new trial, Hall Oil Co. v. Barquin, 33 Wyo. 92; a verdict will be set aside which results from disregard of evidence, 29 Cyc. 830; misapprehension of facts, the instruction, or where based upon conjecture, surmise or insufficient proof, Wolbol v. Steinhoff, 25 Wyo. 237; King v. Baumier, 26 Wyo. 35; R. R. Co. v. Page, 274 U.S. 65. The testimony of Samson, that in his opinion the endorsements were not made at intervals, but at one time, was manifestly surprising; plaintiff was able to meet this suggestion only to some extent--this is sufficient ground for a new trial, Brakeman v. Zavodnick, 219 N.Y.S. 91; Lee v. Braggman, 162 N.W. 788; Mills v. Hall, 209 N.W. 291; 29 Cyc. 895; Watkins v. R. R. Co., (N. H.) 119 A. 206.

Sullivan & Garnett, for defendant in error.

He, who withholds his demand until the death of a debtor, must expect the claim to be given close scrutiny, Weed v. Clarke, 109 A. 8; a creditor having made application of the payment, cannot change it without consent of the debtor, Pearce v. Walker, 15 So. 568; an endorsement made before the bar of the statute is evidence of payment and application, Young v. Alford, 23 S.E. 973; the fabrication of oral evidence creates an unfavorable presumption, 22 C. J. 110; the conduct of a party is important in the determination of the justness of his claim or defense, Moriarty v. Ry. Co., L. R. 5. Q. B. 314; Hays v. Peterson, 6 Wyo. 419; People v. McIntyre, 187 N.Y.S. 897; Nowack v. Ry. Co. 54 L. R. A. 592; the relationship and financial condition of the parties is competent evidence for the jury to consider, Strong v. Slicer, 35 Vt. 40; Bromwell v. Schubert, 28 N.E. 1057; trial by jury is a sacred right, Kahn v. Ins. Co., 4 Wyo. 419; departure from the scintilla rule does not mean that the courts are free to invade the province of the jury, Boswell v. Bank, 16 Wyo. 161; as between a loan and a payment, the presumption is that it was a payment, Bunting v. Allen, 18 N. J. L. 303; Lewis v. England, 14 Wyo. 128. Plaintiff's Instruction "D," assuming as proven the one question of fact in the case, was properly refused, 29 Cyc. 1632; Bader v. Mills, 28 Wyo. 191; instructions ignoring theories of the opposite party are properly refused, 29 Cyc. 1632; Cameron v. State, 38 Wyo. 140; it was within the discretion of the court to deny plaintiff's motion for new trial, Paseo v. State, 19 Wyo. 344; Hecht v. Coal Co., 19 Wyo. 18; Travis v. Barkhurst, 4 Ind. 171; Beal v. Codding, (Kans.) 4 P. 180; 20 R. C. L. 286; Co. v. Umbenhauer, 18 So. 175; plaintiff did not make known any surprise by Sampson's testimony, and is now precluded from alleging surprise, 29 Cyc. 876; Co. v. Umbenhauer, supra; moreover it is not a ground for new trial, 20 R. C. L. 286; Dimmey v. R. R. Co. 27 W.Va. 32; cumulative evidence is not newly discovered evidence, 27 Cyc. 911; 26 L. R. A., (N. S.) 903; Paseo v. State, 19 Wyo. 344; newly discovered evidence must be of such importance that its acceptance would probably change the result, in order to justify a new trial; it is remarkable that plaintiff waited until after her father's death to present this claim; the statutes of limitations are wholesome statutes where obligor of a stale claim is dead and the claim is urged against his widow and children. The judgment should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is an action brought by Nellie M. Smith, plaintiff in error, in the District Court of Albany County, Wyoming, against Julia A. Smith, as Administratrix of the Estate of Dwight P. Smith, deceased, defendant in error, on a promissory note signed by Dwight P. Smith, dated at Laramie, Wyoming, January 17, 1912, payable to the order of plaintiff in error, in the sum of $ 3,000, due two years after date, with interest at six per cent per annum and collection costs, including attorneys' fees...