Willis v. Willis

• Decision Date: 18 February 1936
• Docket Number: 1878
• Citation: 54 P.2d 814,49 Wyo. 296
• Parties: WILLIS v. WILLIS
• Court: Wyoming Supreme Court

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

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 of the injustice perpetrated upon their client by the trial court and this court, that we shall discuss the assignments of error herein, in so far as we did not, or did not fully, discuss the points involved in the original opinion.

1. Counsel complain that we wrongly stated that the "plaintiff" rather than "defendant" owned the building in which the cabaret was conducted. The error, unfortunately, was a clerical error, but we think it did not harm. Counsel also state that we wrongly stated that plaintiff's "son" was living with the defendant part of the time, instead, apparently, of plaintiff's "foster son." The real relation of this man seems to have been a "brother" of plaintiff, rather than a brother of the daughter, as we took it (Record, p. 172). We think, however, that the error was immaterial.

2. Counsel again argue at great length that the court, in giving plaintiff judgment for $ 600 on her second cause of action, on account of money loaned to defendant, thereby also found that the plaintiff lived with the defendant in good faith, believing that she was his wife, and that, accordingly, the judgment on the first cause of action also should have been in plaintiff's favor. We have, however, been unable to come to this view. Our statement on this point in the original opinion was, perhaps, somewhat incomplete, since money loaned, to the knowledge of both parties, to be devoted to an illegal purpose cannot be recovered. The money loaned in this case was used in buying clothes, etc., all of it, apparently, for lawful purposes. In and of themselves, at least, the loans were not illegal. If they were illegal at all, they were made so by extrinsic circumstances. The court may not have found any unlawful purpose or necessary connection with an unlawful purpose. To show that there was at least no necessary inconsistency in the findings of the court, we need to give but one illustration from our own cases. The loans were at least collateral to the main transaction which the court held illegal. This court said in Kennedy v. Lonabaugh, 19 Wyo. 352, 375, 117 P. 1079, quoting from another case:

"When the advances have been made upon a new contract, remotely connected with the original illegal contract or transaction, and the title or right of the party to recover is not dependent upon that contract, and his case may be proved without reference to it, then he is entitled to recover."

See also Paige on Contracts (2nd Ed.), Sec. 1103; Williston on Contracts, Sec. 1753. Now the trial court herein may have based its conclusion on the fact that the loans were only remotely connected with the fact of the parties living together, and that the court decided the case upon this or some other theory is apparent, since we cannot presume that the court intended to decide the case wrongly. Whether such holding would in fact be right or wrong is not the question. The point is, that recovery on the second cause of action did not, as counsel claim, necessarily include a finding that plaintiff lived with the defendant in good faith. The court may have been wrong. But...