158 Wis. 328 | Wis. | 1914
An oral contract based on a valid consideration to leave the promisee a legacy in personal property is lawful and enforceable. Jilson v. Gilbert, 26 Wis. 637; Slater v. Estate of Cook, 93 Wis. 104, 67 N. W. 15; Murtha v. Donohoo, 149 Wis. 481, 484, 134 N. W. 406, 136 N. W. 158. It logically follows that a written contract founded on a valuable consideration to leave real estate would likewise be valid and capable of enforcement.
The circuit court held that the plaintiff’s suit was in the nature of an action for specific performance of a contract to convey real estate and that the verdict of the jury was merely advisory, and that the evidence was insufficient to establish a contract. The verdict was accordingly set aside. If the action was not triable by jury as of right, this court would
Among other things, see. 4034, Stats., relating to appeals from county courts, provides:
“The appeal may be brought to trial in the same manner as actions originally brought therein, and the court shall proceed to the trial and the determination of the matter according to the rules of law, allowing a trial by jury of all questions of fact, in cases where such trial may be proper.”
If there was a valid contract, no good reason is apparent why the plaintiff might not elect to sue for damages for its breach. An action for damages for breach of a contract is triable by jury in the circuit court as a matter of right. If an action is brought for recovery of the amount due on a written instrument for the payment of money, the fact that the instrument was lost would not make the action an equitable one, and wre are of the opinion that the mere fact that the alleged contract could only be established by parol because the writings had been lost does not change the form of action from one at law to one in equity.
It was held in the Jackman Will Case, 26 Wis. 104, that a contest on the allowance of a will to probate was triable by the court. The authority of this case is somewhat shaken, if indeed it has not been abrogated, by the later cases of Will of Slinger, 72 Wis. 22, 37 N. W. 236, and Bovee v. Johnson, 130 Wis. 447, 110 N. W. 212. However this may be, the Jackman Case went upon the theory that actions of that nature were not triable in the common-law courts by a jury. The contrary is of course true of actions for damages for breaches of contract.
The circuit judge also held that the burden was on the plaintiff to prove her case by clear, satisfactory, and convincing evidence, and that she had made no case for submission to a jury under this rule, assuming that the action were one
We accept as correct the rule relied on by the lower court as to the character of the evidence required in a case of this kind. The plaintiff is seeking to establish the contents of lost writings, and sound public policy requires that agreements of the character here involved should be clearly and satisfactorily shown. One of the parties to the alleged contract has been silenced by death. The law should not encourage the making of raids by unscrupulous persons 'on the estates of deceased persons. Meritorious claims may occasionally be lost by the enforcement of such a rule, but the trumped-up claims that may be defeated by it will in all probability form a much more numerous class. The application of the rule to cases of this kind is well supported by authorities. Hamlin v. Stevens, 177 N. Y. 39, 50, 69 N. E. 118; Tousey v. Hastings, 194 N. Y. 79, 80, 82, 86 N. E. 831; Taylor v. Higgs, 202 N. Y. 65, 70, 95 N. E. 30; In re Peterson, 76 Neb. 652, 107 N. W. 993; Liberty v. Haines, 103 Me. 182, 68 Atl. 738, 742; Holmes v. Connable, 111 Iowa, 298, 82 N. W. 780, 781; 40 Cyc. 1072 and cases cited.
In a case triable by jury, to which the rule of evidence stated applies, it is not necessary that the court should be convinced that the proof is clear and satisfactory. . Primarily it must determine whether there is sufficient evidence to warrant a jury in so finding. If there is, the jury should be permitted to pass upon the weight to be given to the testimony.
The two principal witnesses for the plaintiff were her mother, and a sister who was about twelve years old when the alleged agreement was made. It is argued that the mother was not a competent witness under sec. 4069, Stats. The testimony of the sister is not very satisfactory, and if the plaintiff’s case must rest on her testimony and the other corroborative evidence, excluding that of the mother, this
We have few statutes that the bench and bar have found it- so difficult to understand and apply as sec. 4069. The question here involved would seem to be simple enough. If the daughter derived her interest or title from, through, or under her mother, then the latter was not a competent witness respecting any transaction or communication had by her personally with the deceased. The problem is not as simple as it looks. Does the plaintiff claim through her mother; and, if so, did the mother’s evidence relate to a communication or transaction- had personally with the' deceased ? Some courts hold that, inasmuch as the parent fur-" nishes and receives the consideration for the contract, the child necessarily derives her title or interest from the parent. Such is the reasoning of the New York court in Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. 916. The Missouri court enunciates the same rule. Asbury v. Hicklin, 181 Mo. 658, 81 S. W. 390; McMorrow v. Dowell, 116 Mo. App. 289, 90 S. W. 728. And the Iowa court, in a case somewhat different in'its facts, but closely akin to the present case in principle,, adopts the same rule. McClanahan v. McClanahan, 129 Iowa, 411, 105 N. W. 833.
On the other hand; it was held in Godine v. Kidd, 64 Hun, 585, 19 N. Y. Supp. 335, that in an action like the one before us the child does not derive her- title or interest through the parent. On the contrary, it was said that the rights of the child “were obtained under a contract made, it is true, by the mother, but under the terms of which she [the child] derives from the Knapps [the promisors] her title and interest, if any, in and to the property.” Continuing, the court says: “But it is clear that this is a case where the contract was made by the mother on behalf and for the benefit
Rosseau v. Rouss seems to be placed squarely on the ground that the parent was incompetent, because, having furnished and received the consideration, the child’s interest must necessarily be derived from the parent. If this be the correct interpretation of the statute, we do not think that the mother was incompetent in the present case. She was a married woman living with her husband at the time. The father was entitled to the care and custody of the child. Sec. 3964, Stats. He was also legally bound to provide for its support and maintenance. Under the alleged agreement with McQuade, the father escaped the obligation of providing for the support of the child and surrendered his parental right to her care and custody. This would seem to be the extent of the consideration received or parted with by the parents. Of course in certain contingencies the mother would have the right to the care and custody of the child. Hone of these appear to have arisen when the bargain was made. So it would seem that the rule of Rosseau v. Rouss has no application to the present case, — the father and not the mother having furnished and received the consideration. Considered from a legal standpoint, the benefits received by the mother under this contract were no greater than the interest of a stockholder akd officer' of a corporation in a credit due the corporation. In a suit brought by the corporation to collect
The only remaining question which we deem it necessary to discuss is whether the court erred in setting aside the verdict. The question is by no means free from doubt. The letters constituting the alleged contract were lost and the transaction took place about twenty:one years before the trial. The memory of witnesses as to the contents of writings after the lapse of a long period of time is apt to he uncertain, and the two principal witnesses do not entirely agree as to what the writings contained. There is nothing inherently improbable about a contract having been made. The McQuades had no children. They had accumulated some property. Apparently Mr. McQuade had no blood relatives. The plaintiff was a niece of his wife. Plaintiff’s mother had several children, and she and her husband were in very poor circumstances. Notwithstanding this fact, the mother was very reluctant to part with her child, and no doubt did so because she thought the best interests of the child would be subserved by so doing. The transaction was one calculated to make a lasting impression on her mind. It is reasonable enough to suppose that she would retain in her memory the main and essential facts, although she might be mistaken as to details. There was nothing unusual about the desire of the McQuades to have a child in their home, particularly when that child was a relative of the wife, and there was nothing improbable about their willingness to leave their property to her when they had no nearer relatives. The evidence of Mrs. Mimes, plaintiff’s mother, is fairly capable of meaning that Mr. McQuade wrote that if plaintiff’s parents would give
By the Gourt. — -Judgment reversed, and cause remanded with directions to enter judgment on the verdict.