170 Wis. 550 | Wis. | 1920
The following opinion was filed December 2, 1919:
The court properly refused to submit to the jury any claim founded upon services rendered to George
It is undisputed that plaintiff was away from the farm for at least a period of not less .than four or five years and perhaps for seven or eight years at one time previous to his return from Minneapolis, the date of which he is unable to fix definitely but which he thinks was in 1903 or 1904. Such absence must be held to have terminated any agreement he may have entered into with Anna Felz shortly after the death of her husband in 1896, and it is clear that if he can recover at all it must be by reason of an agreement made with her after his return from Minneapolis.
Relative to the issue submitted in the second question, the plaintiff was permitted to give oral testimony of the contents of a letter he claimed he had received from Anna Felz while he was in Minneapolis, and which letter he said was lost, to the effect that therein she stated that if he would come back and stay with her as long as she lived she would give him her property. The reception of such evidence was error, as the trial' judge later properly concluded in his opinion in the case. Jackman v. Inman, 137 Wis. 30, 118 N. W. 189, and cases cited; Tolsma v. Tolsma’s Estate, 183 Mich. 314, 149 N. W. 1050. The sending and receipt of the letter was a transaction between plaintiff and the deceased. Its contents constituted communication between them. The letter if genuine and produced would have been admissible in evidence, but to permit oral testimony of its contents by plaintiff would be to emasculate sec.
The error in receiving parol proof of the contents of the letter was prejudicial error because it was the most cogent evidence upon which an affirmative answer to question 2 could be based, and the jury must have given it weight in arriving at their conclusion. Without such evidence a verdict could not be directed for either party, and therefore a question for the jury remained which they never passed upon freed from the material incompetent evidence. Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jackman v. Inman, 134 Wis. 297, 114 N. W. 489.
Exclusive of the testimony of the contents of the letter, is there credible evidence sufficient to sustain an affirmative answer to question 2 ? The trial court thought 'not and therefore changed the answer to that question. In so doing it is apparent he was influenced by.the fact that there was very persuasive evidence that during the latter years of Mrs. Felz’s life plaintiff received a part of the proceeds of the crop of the farm, and therefore he must have been renting it on shares, and such an arrangement was inconsistent with his claim that he was to work the farm and take care of his aunt till she died in consideration of her giving him all her property. It is quite clear that after her death plaintiff received from the administrator one half of the crop, hogs, and veal then on the farm.
Plaintiff, who is the nephew of George Felz, Sr., came from Germany in 1882, then only about fourteen years of age, to live with his uncle and aunt. At her death in 1916 he was unmarried and about forty-eight years of age. It does
Among other evidence tending to support the claim that after plaintiff returned from Minneapolis the deceased agreed to give him her property if he would work the farm and take care of her till her death, is that of John Water-puhl, who testified that about two years before Anna Felz died he heard her say to George that if George would stay with her all her living days the property belonged to him, and that he said he would stay; also that of Frank Matysik, who testified that some time after the death of George Felz, Sr., the farm was rented, “Then when the renters moved out-i George went on to the farm with her and he stayed with her until she died,” though part of the farm was rented after that. She said to George, “Now, George, if you will stay with me as long as I live everything I got is yours, if
By the Court. — Judgment reversed, and cause remanded for a new trial.
A motion for a rehearing was denied, with $25 costs, on February 10, 1920.