White v. Flood, 51943

• Citation: 258 Iowa 402,138 N.W.2d 863
• Decision Date: 14 December 1965
• Docket Number: No. 51943,51943
• Parties: Francis M. WHITE, Appellee, v. Agnes FLOOD and Mary Flood, Appellants.
• Court: Iowa Supreme Court

Page 863

138 N.W.2d 863

258 Iowa 402

Francis M. WHITE, Appellee, v. Agnes FLOOD and Mary Flood, Appellants.

No. 51943.

Supreme Court of Iowa.

Dec. 14, 1965.

Stewart, Miller, Wimer, Brennan & Joyce and Thaddeus C. Jones, Des Moines, for appellants.

Herrick, Langdon, Sandblom & Belin and Philip C. Lovrien, Des Moines, for appellee.

MOORE, Justice.

This is an action to recover the amount due under the following written instrument executed by plaintiff and defendants and filed on or about December 5, 1956 in the matter of the estate of Edward Flood, deceased, in the Dallas district court, Probate No. 9360.

'STIPULATION AND AGREEMENT

'WHEREAS Francis M. White, together with Mary Flood and Agnes Flood, filed a petition for the probate of a will of Edward Flood, dated July 19, 1952, and a first codicil thereto dated February 18, 1953, and a second codicil thereto dated July 6, 1953 and

'WHEREAS Mary Flood and Agnes Flood were contestants of the Last Will and Testament of Edward Flood dated April 7, 1954, which matter has now been settled between the aforesaid contestants, and Margaret Flood, surviving spouse and beneficiary of the aforesaid Last Will and Testament dated April 7, 1954, and

'WHEREAS Francis M. White, one of the proponents of the wills in which he signed for the probate thereof as above described, has agreed to dismiss, so far as he is concerned, the petition for the probate of said instruments above referred to and to bring no contest,

'IT IS THEREFORE MUTUALLY AGREED for a valuable consideration, by and between Mary Flood and Agnes Flood and the said Francis M. White, that in consideration of the payment to the said Francis M. White the One Thousand ($1,000.00) Dollars less $100.00 inheritance tax of which the was the beneficiary of the first codicil of the will above referred to, that the said Francis M. White agrees to accept the same and to file no contest or to bring any action to probate said will or the two codicils thereto, which will and codicils are dated as above stated and assigns any claim he was under said codicil to the said Mary Flood and Agnes Flood. The One Thousand ($1,000.00) Dollars to be paid herein to Francis M. White by Mary Flood and Agnes Flood, shall be paid without interest, within one year from the date of this contract, less the One Hundred ($100.00) Dollars Inheritance tax.'

Defendants filed a motion for more specific statement and to produce documents. The trial court overruled the first but no ruling was ever made on the second. Defendants then answered alleging the agreement was without consideration. Defendants also counterclaimed seeking to recover under a lease executed by plaintiff with the administrator with will annexed of the estate of Edward Flood, deceased. Plaintiff's motion to dismiss the counterclaim was sustained. Defendants elected to stand on their pleading. After filing a reply, plaintiff filed an application for adjudication of law points regarding the defense of no consideration and also a motion for summary judgment. The trial court sustained the latter and entered judgment against defendnts. They appeal. We affirm.

Defendants assert the trial court erred in (1) overruling their motion for more specific statement, (2) failing to rule on the motion to produce documents, (3) dismissing their counterclaim and (4) entering summary judgment.

I. Defendants' motion for more specific statement asked that plaintiff be required to plead a copy of the assignment of his interest as beneficiary under the codicil of Edward Flood's will.

Rule 112, Rules of Civil Procedure, provides: 'Motion for more specific statement. A party may move for a more specific statement of any matter not pleaded with sufficient definiteness to enable him to plead to it and for no other purpose. It shall point out the insufficiency claimed and particulars desired.'

The last paragraph of the agreement sets out the only assignment claimed by plaintiff. It states plaintiff 'assigns any claim he has under said codicil to the said Mary Flood and Agnes Flood'. It was pleaded with sufficient definiteness to enable defendants to plead to it. We approve the trial court's ruling.

II. Defendants' motion for production of documents filed before the issues were joined, asked that plaintiff be required to produce copies of the will of Edward Flood dated July 19, 1952 and the codicil thereto dated February 18, 1953. It contained no allegation they were in control of plaintiff.

Rule 129, Rules of Civl Procedure, provides: '(a) After issue is joined in any action, any party may file an application for the production or inspection of any books or papers, not privileged, which are in the control of any other party, which are material to a just determination of the cause, for the purpose of having them inspected or copied or photostated. The application shall state with reasonable particularity the papers or books which are called for, and state wherein they are material to a just determination of the cause, and state that they are under the control of the party from whom production is requested. The movant need not use such documents as evidence at the trial.

'(b) The court shall fix the time and place for hearing on the application, and prescribe the manner and form of giving notice to the party from whom production is asked, or to his attorney of record.'

Defendants had some obligation to pursue this motion and obtain a ruling thereon. If they had done so it would have been the trial court's duty to deny it. It asked for copies and failed to state the documents were under plaintiff's control. The first paragraph of the agreement states they were offered for probate by the parties herein. Apparently these instruments were as available to defendants as to plaintiff. We find no merit in defendants second assignment of error.

III. Defendants' counterclaim sought recovery for breach of a farm lease between George J. Dugan, administrator with will annexed of the estate of Edward Flood, deceased, as landlord and plaintiff as tenant. It was a cash or crop share lease for one year commencing March 1, 1957 for a 240 acre Boone county farm owned by Edward Flood at the time of his death. It provided rent was to be paid at landlord's office at Perry. It was made subject to court approval which was obtained.

Defendants alleged they as residuary beneficiaries inherited a half interest and had purchased the other half interest in the farm from the surviving spouse. They further alleged plaintiff at the end of the lease failed to remove 3300 bushels of corn and miscellaneous machinery from the farm and sought to recover five dollars per day as liquidated damages under its terms. The lease was made by reference a part of defendant's counterclaim. They alleged the administrator with will annexed entered into the lease for their use and benefit.

Plaintiff moved to dismiss the counterclaim on the grounds it showed defendants were not entitled to any relief, defendants were not parties to the lease, the lease was with the administrator, defendants' allegation the lease was for their use and benefit was a legal conclusion, defendants had failed to allege facts entitling them to enforce its terms and the counterclaim contained no allegation plaintiff had failed to yield possession of the farm at the end of term. Plaintiff pointed out the lease provided for five dollars per day liquidated damages for failure to so yield possession and control of the farm.

Defendants elected not to amend their counterclaim either before of after it was dismissed by the trial court.

A doubtful pleading is resolved against the pleader when attacked before issue or in the answer. Ruud v. Grimm, 252 Iowa 1266, 1270, 110 N.W.2d 321, 323; Hahn v. Ford Motor Company, 256 Iowa 27, 29, 126 N.W.2d 350, 352; Winneshiek Mutual Ins. Assn. v. Roach, 257 Iowa ----, 132 N.W.2d 436, 444; Halvorson v. City of Decorah, Iowa, 138 N.W.2d 856, filed December 14, 1965.

A pleader must plead the ultimate facts in the case. He is not permitted to plead conclusions by themselves. Pleaded conclusions may be considered only if based on pleaded facts. Eaton v. Downey, 257 Iowa 573, 578, 118 N.W.2d 583, 586; Winneshiek Mutual Ins. Asn. v. Roach, 257 Iowa ----, 132 N.W.2d 436, 444. See also 71 C.J.S. Pleading § 14; 41 Am.Jur., Pleading, section 16.

Plaintiff's motion to dismiss did not admit defendants' pleaded conclusion that the lease was made for their use and benefit. It admitted only the truth of well pleaded issuable and relevant facts. Hahn v. Ford Motor Co., 256 Iowa 27, 29, 126 N.W.2d 350, 352, and citations; Harvey v. Iowa State Highway Commission, 256 Iowa 1229, 1231, 130 N.W.2d 725, 726. The court approved lease contains no indication it was made for defendan...