Willis v. Willis, 1878

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: BLUME, Justice.
• Citation: 54 P.2d 814,49 Wyo. 296
• Parties: WILLIS v. WILLIS
• Docket Number: 1878
• Decision Date: 18 February 1936

54 P.2d 814

49 Wyo. 296

WILLIS
v.
WILLIS

No. 1878

Supreme Court of Wyoming

February 18, 1936

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL, Judge.

On petition for rehearing. For prior opinion, see 48 Wyoming 403, 49 P.2d 670.

Petition for rehearing denied.

In support of the petition for rehearing, there were briefs by Armstrong & Armstrong, of Rawlins.

The plaintiff advanced money to defendant for various purposes; defendant denied that she had lent him money. If plaintiff had not been acting in good faith, she could not have recovered on her second cause of action. Standard Company v. Van Alstine, (Wash.) 62 P. 145; 13 C. J. 518, 519; Dougherty v. Seymour, (Colo.) 26 P. 823; Olson v. Saxton, (Ore.) 169 P. 119; Anderson v. Freeman, (Tex.) 100 S.W. 350; Harlow v. Laclair, (N. H.) 136 A. 128; Pitts v. Rivers, (Ga.) 38 S.E. 109; Otis v. Freeman, (Mass.) 85 N.E. 168; Appleton v. Maxwell, (N. Mex.) 65 P. 158. In cases tried to a court, a general finding is sufficient to sustain the judgment. Hinton v. Saul, (Wyo.) 259 P. 185. A general finding on each cause of action is sufficient. 64 C. J. 1249. An appellate court will, whenever possible, harmonize apparently inconsistent findings. 26 R. C. L. 1093; Bank v. Parker, (N. Y.) 29 N.E. 1094. The relations of the parties did not forbid a contract between them. Defendant insisted that in view of the relations of the parties no re-payment was expected, and cited Cooper v. Cooper, 17 N.E. 892. This case has not been generally followed in the cases where it has been cited. Page on Contracts, Section 848. There is no testimony to the effect that plaintiff had a son; there is a reference to a foster son of defendant. The appellate court also misconceived the testimony as to the ownership of the pool hall. The court failed to give effect to the admissions of the defendant with reference to plaintiff living with defendant as a domestic servant, and her compensation and other admissions sworn to by defendant in his pleading. Baldwin v. McDonald, 24 Wyo. 108; F. W. Woolworth Company v. City of Seattle, (Wash.) 177 P. 664; Connor v. Ry. Company, (Mich.) 133 N.W. 1003; King v. Spencer, (Conn.) 161 A. 103; Shea v. Hearn, (Mo.) 171 A. 248; 22 C. J. 424. The payment of a debt constitutes an admission of the debt. Smith v. Smith, 39 Wyo. 137. The court failed to give effect to admissions of defendant contained in his amended answer, which were conclusive and could not be controverted by evidence he might produce. 49 C. J. 122, 789; Nugent v. Powell, (Wyo.) 33 P. 23; Jones v. Morehead, 1 Wall. 155; Hibernia Savings & Loan Society v. Dickinson, (Cal.) 140 P. 265; Everett v. Cole, (Colo.) 282 P. 253; Hilsinger v. Steel Company, (Iowa) 187 N.W. 493. The right to recover for services does not depend on whether they were of value to defendant. 39 C. J. 144. The court erred in holding that the relations between the parties prevented plaintiff from recovering for services, which were not incidental to the relation, as on an implied contract. 71 C. J. 80; Roche v. Union Trust Company, 52 N.W. 612; Tuttle v. Shutts, (Colo.) 96 P. 260; In re Cormick's Estate, (Nebr.) 160 N.W. 989. Of course, the services must be shown to be of a kind not required by reason of the marriage statutes. Bohanan v. Maxwell, (Iowa) 181 N.W. 683; Michigan Trust Company v. Chapin, (Mich.) 64 N.W. 334. The court erred in holding that defendant's counsel did not, by cross-examination of the plaintiff on matters outside the scope of the direct examination, make her his witness so as to be bound by her testimony. Turner v. S. P. Company, (Cal.) 76 P. 384; Sieber v. Weiden, (Nebr.) 24 N.W. 215; Smith v. State, (Ohio) 180 N.E. 695. The court erred in holding that an express contract was not established by the evidence. Bank v. Weston, (N. Y.) 64 N.E. 949; Burnham v. Norton, (Wis.) 75 N.W. 304; Lewis v. Ry. Co., 99 N.Y.S. 462; Gibbons v. Ry. Company, (Nebr.) 154 N.W. 226. The phrases and legal conclusions stated by the defendant in his testimony have no probative force. Blinn v. Ritchie, (Cal.) 282 P. 390; 28 R. C. L. 695; Button v. Higgins, (Colo.) 38 P. 390.

In opposition to the petition, there was a brief by T. S. Taliaferro, Jr., of Rock Springs.

None of the authorities cited by counsel for appellant in his brief on motion for rehearing, with respect to immoral activities in contracts, are in point. One of the issues in the case was whether Isaiah Willis borrowed money from Ethel Willis, for the purpose of making specified purchases. This issue was presented by plaintiff's second cause of action. Upon the issues joined in the first cause of action, the court found for defendant and against the plaintiff, and the judgment is sustained by the evidence. There were two causes of action, one which the court denied because the evidence showed that it was steeped and honeycombed with wrong and immorality; the other cause of action the court allowed, because it was fair and legal and supported by substantial evidence. Among other authorities, counsel for plaintiff cites 22 C. J. 424, but fails to direct the court's attention to page 336, Section 380 of the same volume, which deals directly with "abandoned or superseded pleadings." Counsel for plaintiff also quotes from 71 C. J. 80, Section 40, which deals with an express contract for compensation, or where the work and labor performed are entirely outside and beyond the domestic relations which the parties have assumed. We have never contended against the elementary rule that compensation for work or labor performed outside and beyond domestic relations may not be a subject of recovery. The authorities quoted in this connection on pages 18 to 24 are not germane to any issue before this court. Recovery on plaintiff's first cause of action was properly denied by the trial court. The second cause of action was at least based upon a somewhat different foundation, the objects and purposes thereof not being in themselves illegal or immoral. The trial court gave judgment for plaintiff and against the defendant and respondent.

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

OPINION [54 P.2d 815]

[49 Wyo. 300] BLUME, Justice.

A petition for rehearing, with the assignment of a number of errors and a lengthy brief, has been filed herein by the plaintiff. Our original opinion is long; we attempted to take up and discuss at some length each and every point which we deemed important, and stated that on account of the many points argued, we could not discuss every one of them. So we hesitate to add anything more to the discussion of this case. But counsel for plaintiff have shown such zeal in the cause, and have evidently so thoroughly persuaded themselves...