Thrall v. Thrall

• Decision Date: 15 May 1884
• Parties: THRALL AND OTHERS v. THRALL.
• Court: Wisconsin Supreme Court

60 Wis. 503

19 N.W. 353

THRALL AND OTHERS

v.THRALL.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from the circuit court, Winnebago county.Jackson & Thompson, for appellants, William H. Thrall and others.

Chas. W. Felker, for respondent, Willis E. Thrall.

COLE, C. J.

As a defense to the action of ejectment the defendant set up an equitable counter-claim, to the effect that his mother, Phœbe Thrall, in the fall of 1868, entered into a contract with him by which she agreed, in consideration that he would return from New York; live and reside upon the farm in controversy; improve and work the same; support, provide for, and maintain her and his father (her husband) during their natural lives,--that the premises should become and be his sole and separate property. He alleges that he did return in the spring of 1869; took possession of the farm in pursuance of this agreement; worked the same; made various improvements thereon; supported and maintained his parents, while they both lived, and generally performed the contract on his part. He asked for a specific performance of this contract, and that the court adjudge the title of the farm to be in him. On the second trial of the cause the learned circuit court found that the facts set up in the counter-claim were established by the proof, and granted the relief prayed in the answer.

It is obvious that the record on this appeal presents mere questions of fact which it would be unprofitable to discuss at any length. A vigorous attack was made by the plaintiffs' counsel upon the findings of the circuit court; but it seems to us there is ample proof to sustain them. Of course, the rule of this court is familiar to the bar that the findings of the trial court will not be set aside unless they are against the weight of the testimony. The burden of overcoming them is upon the party appealing. Now, as counsel contends, the onus in the court below was upon the defendant to prove that the contract upon which he relied was actually entered into, and to show its terms with clearness and certainty. The learned counsel says that no such proof was given on the trial. But, in order to make good his contention, the counsel, in effect, asks the court to reject as improbable and unworthy of credit the testimony of Dr. Hurd and of the witness J. P. Tyrell, both of whom swear to the contents of a letter written by the mother, Mrs. Thrall, to the defendant in New York, which, in substance, proposed if he would return home and take care of his parents while they lived, stay on and work the farm, he should have it and all that was on it. Dr. Hurd says Mrs. Thrall wrote such a letter by his advice, in the summer or fall of 1868, which he himself mailed. There is other testimony as to the repeated statements of Mrs. Thrall to neighbors, during the time the defendant was in possession of the farm and carrying it on, which corroborates the testimony of Dr. Hurd and Tyrell that a letter was written about that time by Mrs. Thrall to the defendant, which contained the essential terms of a proposition or contract such as is set up in the counter-claim. Now, the question is, was the court below justified in relying on the veracity of these witnesses, and in giving credit to their statements on this important point? We certainly see nothing in the testimony so improbable or inconsistent as would authorize a court in rejecting it as false. Besides, it is difficult to account for the acts of the parties except upon the assumption that some arangement of the kind as to working the farm, the support of the old people, and compensation of the defendant had been made; for it is an incontrovertible fact that in the fall of 1868 the defendant held a position in New York as shipping clerk, where he was receiving a salary of $1,100 a year, which he vountarily gave up and came home to carry on a farm of 80 acres, which was run down, buildings and fences out of repair, and on which there was but little stock, and from which, with his best endeavors, he could hope to barely make a living for himself and parents, as he did do. Now, when we find the defendant acting in this manner, working the farm faithfully for 12 years or more, expending all the money he could raise in making improvements, and barely making a poor living, we would naturally infer that some contract existed by which he was to be compensated for his services at some time. The learned counsel for the plaintiffs felt the force of this view of the case, and candidly admitted his belief that the defendant did have letters from his mother asking him to come home, proposing some agreement about his carrying on the farm, by which at some time, and on some terms, he was to have a portion of the property as compensation. Of course, such a conclusion is not only natural but...