Sutherland v. Briggs

• Decision Date: 16 February 1918
• Docket Number: 31028
• Parties: D. W. SUTHERLAND, Executor, Appellee, v. ALLEN G. BRIGGS et al., Appellants
• Court: Iowa Supreme Court

166 N.W. 477

182 Iowa 1170

D. W. SUTHERLAND, Executor, Appellee, v. ALLEN G. BRIGGS et al., Appellants

No. 31028

Supreme Court of Iowa, Des Moines

February 16, 1918

Appeal from Audubon District Court.--J. B. ROCKAFELLOW, Judge.

ACTION by executor of the estate of Sarah Briggs, deceased, against defendants on a contract, resulted in judgment as prayed. The defendants appeal.

Reversed.

J. M Graham, Joe H. Ross, and S. C. Kerberg, for appellants.

O. W Emmons and Lee & Robb, for appellee.

LADD J. PRESTON, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

LADD, J.

Sarah Briggs died testate February 22, 1913, and, upon the admission of her will to probate, D. W. Sutherland was appointed executor of her estate. In this action, recovery is sought by him upon an article of agreement between decedent and her grandsons, defendants herein, in words following:

"This article of agreement made and entered into and executed in triplicate on this twenty-third of August, 1907, by and between Sarah Briggs, party of the first part, and Frank W. Briggs and Allen G. Briggs, parties of the second part, witnesseth: The said Sarah Briggs, has the sum of fifty hundred ($ 5,000) dollars, which she has loaned to the said second parties and which they have invested in the Northwest Quarter of Section Thirty-Three of Township Number Eighty-One, North, of Range Thirty-Six, West of the Fifth Principal Meridian, Lincoln Township, Audubon County, Iowa, and on which land all the parties at the present time reside. There are no papers showing this loan. The said first party hereby states all interest accruing on this amount of five thousand dollars ($ 5,000) will be paid up to the first day of March, 1907, by the second parties this day, and this agreement is a settlement of all matters relating to said loan to March 1st, 1907. First party also agrees to leave the said money in the possession of the second parties as long as this contract remains unbroken and as long as she shall live, provided this agreement be not violated; but she reserves the right to make ultimate disposition of the said amount of $ 5,000 by will or otherwise. The second parties hereby agree to pay the said first party in consideration of the above agreements and loan of money, the sum of two hundred dollars per annum from and after the first day of March, 1907, as follows; $ 200.00 on the first day of March, 1908, and $ 200.00 on the first day of March of each year thereafter during the life of this contract, which payment of said sum shall be in full for the use of the said money belonging to the first party during the year ending on the date of payment. Said payments are to be made at the Bank of Manning, Manning, Iowa. Second parties also agree to consult first party should they desire to sell said land; and if they wish to sell, they agree to satisfactorily secure the first party in the sum due her before effecting said sale."In witness whereof the said parties have hereunto affixed their signatures on the day and year above mentioned.

"Sarah Briggs, First Party.

"Frank W. Briggs,

"Allen G. Briggs, Second Parties."

This contract was duly acknowledged by the parties thereto, and filed for record December 14, 1907. The defendants pleaded, prior to any breach, that the above instrument was settled, satisfied, and discharged, same being evidenced by writing on the margin of the record of said instrument in the county recorder's office, in words following:

"These articles of agreement released this 22d day of May, 1908, by agreement of parties and certifying that money has been paid.

"[Signed] Sarah Briggs.

"[Signed] Frank Briggs.

"[Signed] Allen G. Briggs, by

"F. W. Briggs."

They say that said contract and indebtedness evidenced thereby are discharged, and the executor estopped from claiming anything thereunder. Defendants further allege that decedent forgave them any unpaid portion of the amount owing on said instrument, and that the above writing was signed by her to satisfy the indebtedness and relieve them from paying same. By way of reply, plaintiff put the allegations in issue, averred that the entry on the margin of the record was of no force or effect, denied that any such agreement had been made, or that the original contract ever was surrendered or cancelled or satisfied, and set up some other matters not necessary to recite.

I. The plaintiff introduced the above contract and rested. Thereupon, defendant, after showing that the entry in the margin of the record of said contract was written by the deputy recorder of the county, and signed as above indicated, introduced the same in evidence.

Mrs. Lilas Briggs, wife of defendant Allen G. Briggs, was then called as a witness, and, after testifying that she was acquainted with decedent, stated that the latter was at her home about May 22, 1908; that decedent went to Audubon with Frank W. Briggs on that day; and that before they went she had heard a conversation between decedent and Allen Briggs about the $ 5,000 contract. She was asked:

"Now, just tell the jury what Sarah Briggs said, if anything, about what she would do with reference to this contract,--what she was going to do about releasing it, or otherwise."

Counsel for defendant objected to the competency of the witness, and to the testimony, as incompetent and irrelevant to any issue in the case. The court expressed the opinion that the "objection is good, * * * independent of the statute, * * * on the ground that it is entirely immaterial; the intention or the expressed intention of what is sought or going to be done some time in the future." It was then explained that the court ruled that what was said was immaterial. We cannot concur in this view. One of the issues raised by the answer was whether decedent, in making the marginal entry, so did with the purpose of forgiving the debt. What she may have said at about the time of satisfying the instrument would aid in ascertaining her purpose in what she did: i. e., whether merely to discharge the lien of the contract, or to satisfy the debt, as paid or as forgiven. Had the entry been a contract, a different question would have been presented; but it was not, and did not purport to be, other than a satisfaction of the articles of record. The objection should have been overruled.

II. The same witness testified to having heard a conversation between Sarah Briggs and Allen Briggs when the former returned from Audubon; that, "when Mrs. Briggs came home, Allen was sitting there in the room, and she said that she had it released, and had it fixed so it was theirs. Mrs. Briggs came in, and she said she had that released, and that it was theirs. Allen asked her if it was this,--I believe he called it a contract; and she said 'yes,' that she had it released and that it was theirs." The witness was asked, on cross-examination, whether she "told Mrs. Esther Newell, at a sale held at Tom Newell's place, in the fall of 1913, that you did not want the boys, Allen and Frank, to buy a certain 40 acres of land, because they owed their grandmother something,--meaning Mrs. Sarah Briggs."

Over an objection as incompetent, immaterial, and irrelevant, not binding on the defendants, not made in their presence, and as not tending to impeach the witness, she answered that she did not remember telling anything of the kind to anyone, and, in response to another question, that she did not remember making the statement at any time.

Later, Mrs. Newell was called as a witness, and, after stating that she had attended the sale in the fall of 1913 at Tom Newell's, and that she had met Mrs. Briggs there, was asked:

"What is the fact about you having had a conversation with Mrs. Allen Briggs at that time with reference to the boys, Frank Briggs and Allen Briggs, owing their grandmother something? Did Mrs. Allen Briggs say to you, at the sale in the fall of 1913, that she did not want the boys, referring to Allen and Frank, to buy that 40 acres, because they owed Grandma something?"

It will be observed that the one statement to Mrs. Newell, if made, was not necessarily contradictory of the testimony of the witness. Only by inference might it be construed even to be inconsistent therewith. If the witness referred to the contract, by "owing their grandmother something," then the inference would be that, in the witness' opinion, something was unpaid thereon; but what? The defendants concede that, even if it were cancelled, they were to pay her $ 200 per year until her death for her maintenance, and for all that appears, she may have had this in mind. But there is nothing to show that she referred to the contract, nor that she may not have referred to some other indebtedness. Moreover, notwithstanding what decedent may have said, the witness may have thought defendants liable on the contract. The record was such that it might not have been found that the one statement was contradictory of the other; and therefore Mrs. Newell's testimony should have been excluded, and there was error in overruling the objection thereto and in instructing the jury thereon.

III. On September 4, 1911, decedent executed a will, beginning with this recital:

"All the property I own at the present time is the sum of five thousand ($ 5,000) dollars which I have loaned to my two grandsons, Allen G. Briggs and Frank W. Briggs, tenants in common. The said investment is not evidenced by promissory notes or a mortgage and the only written evidence thereof is one certain contract entered into and executed in duplicate on the 23d day of August, 1907, by and between myself and my two grandsons aforesaid, which contract was recorded in the office of the county recorder of Audubon County, Iowa, on the 20th day of July, 1909."

Then followed...