40 P. 954 | Cal. | 1895
On the thirtieth day of December, 1892, Henrietta R. Cooke sold" and conveyed to the defendant J. N. Scoggins a lot of land in the town of Colusa. The purchase price of the lot was $3,000, and of this sum the defendant at once paid $1,200, by assuming and discharging an indebtedness of Mrs. Cooke in that amount, which was secured by a mortgage on the property. On the 26th of February, 1893, Mrs. Cooke died, and thereafter the plaintiff was duly appointed administrator of her estate by the superior court of
The appellant contends that the findings were not justified by the evidence, and that numerous errors of law were committed by the court in the rejection of offered evidence, and hence that his motion for new trial should have been granted. As to $1,400 of the purchase money, there was direct and positive testimony that that sum was paid to Mrs. Cooke on the day the deed was executed. Scoggins testified: “I paid Mrs. Cooke .$1,400, and gave her my note for $400 on the 30th of December, 1892—note and receipt—-for her place; and released a mortgage on that place, and took it upon my old place, making altogether $1,200, and the $1,400, making $2,600. My wife was present when the money was paid. No one else was present. The note was, in case she dies, to have the money ready for her funeral expenses. This paper [identifying] is the note, signed by me. On the opposite side is a receipt which I drawed up to give her in place of the note, on the start, and she said, ‘Maybe you had better give me a note.’ The receipt was drawn first. Then the note was drawn, on the back of the receipt. They were drawn on the 30th of December, 1892. ’ ’ Mrs. Scoggins testified: “ I am the wife of the defendant J. N. Scoggins. Was in Colusa on the thirtieth day of December, 1892; was at Mrs. Cooke’s resi
It is earnestly urged that, in view of all the circumstances shown to have attended the transaction, the defendant’s evidence as to the payment of the $1,400' was wholly incredible, and ought not to have been believed. But while, of course, it seems strange • that the money, if paid, should have disappeared as it did, and no one be able to account for it, still, the question as to whether the evidence in regard to the payment was true or false was a matter for determination by the trial court, and, under a well-settled rule, its conclusions cannot be disturbed in this court.
“Colusa, December 30, 1892.
“Received from Mrs. H. R. Cooke four hundred dollars, to be used as funeral expenses or returned to Mrs. H. R. Cooke on demand. $400.
“ [Signed] J. N. SCOGGINS.”
“$400. Colusa, December 30, 1892.
“After her [Mrs., Cooke’s] death, or at her [Mrs. Cooke’s] demand, I promise to pay the sum of four hundred dollars, in United States gold coin, to the aid and assistance of her [Mrs. Cooke’s] funeral expense, or at her [Mrs. Cooke’s] demand. Made this 30th day of December, 1892.
“J. N. SCOGGINS, Marshal.
“Colusa, Cal.”
Scoggins testified that he drew the receipt first, and offered it to Mrs. Cooke, and she said, “Maybe you had better draw up a note, so in case anything happens to you I will have it to show,” and that he then drew the note on the other side of the same paper; that he gave the paper to her, and she said she would return it to him if anything happened; and that, after she was stricken down in her last illness, she handed the paper back to him, saying: “Here is something for you.” Scoggins further testified that during her illness Mrs. Cooke gave him $35 in money, stating that she wished him to see that her doctor was paid; and that he had paid the doctor and a small bill for medicines and her funeral expenses, the several sums aggregating $435, for which he produced receipts. Appellant contends that these payments by Scoggins were made without authority, and constituted no part of the purchase money, and therefore no defense to the action; that the adjustment of claims against the estate of a deceased person, whether created for funeral expenses or otherwise, is a matter of exclusive probate jurisdiction; and that, had Mrs. Cooke signed the alleged written authority, it was not within her power to create a valid trust for the payment of any indebtedness after her death, without the sanction of the probate court.
Under our statute, an express trust relating to personal property may be created by parol (Civ. Code, secs. 2221, 2222), and the evidence clearly shows that such a trust was created as to the $400. The delivery and return of the note
It is objected that, under the answer, this defense was inadmissible, but we think otherwise. The answer alleged full payment on the 30th of December, 1892; and, under that issue, it was competent to show how and when the payment was consummated. During the trial numerous questions were propounded by the plaintiff to his witnesses as to what Mrs. Cooke had said after the sale in regard to its terms, the payments made and to be made, etc. The questions were objected to as irrelevant, incompetent, and immaterial, and the objections were sustained, and exceptions reserved. It does not appear what any of the answers would have been; but, assuming that they would have tended to support the theory of plaintiff, they were clearly inadmissible, the declarations not having been made against the interest of the declarant: Code Civ. Proc., secs. 1853, 1870, subsec. 4. As said in Fischer v. Bergson, 49 Cal. 294: "These declarations were not in disparagement of the title of the declarant. They were not offered by the defendant, but by the plaintiff himself, to strengthen his own claim. They had no greater force as evidence than they would have had had the decedent brought this action in his lifetime, in which case the inadmissibility of such declarations would be apparent.” We find no prejudicial error in the record, and advise that the judgment and order be affirmed.
We concur: Searls, C.; Haynes, 0.
For the reasons given in the foregoing opinion the judgment and order are affirmed.