171 Iowa 633 | Iowa | 1915
: The note is in the following form :
1. Pleading : ^aeration”11’ sufficiency. “Murphy, Iowa, Oct. 22, 1910.
“For value received I promise to pay S. ^eddes $2,300 without interest after my death, or before if I elect to do so. This note shall not be negotiable or transferable or made a collateral.
_ J. W. Murphy. ’ ’
The signature to the note was denied by defendant in his answer, but upon the trial the signature was conceded.
Because plaintiff raises some question that defendant did not plead want of consideration, and because of other questions raised as to the defendants’ pleading, we set out the second and third divisions in full.
“Division 2. For other and further answer, the defendant avers that the written instrument described therein
“Division 3. For other and further answer, the defendant avers that the execution by J. W. Murphy of the instrument described in said claim, if said instrument was executed by him, was procured by and was the result of undue influence exercised upon and over said J. W. Murphy by the claimant, said Murphy being at that time an old man in his 86th year, of impaired faculties and enfeebled powers. That at the time of the alleged execution of said instrument, and for many years prior thereto, the claimant was a prominent and influential clergyman of the Methodist Protestant church — a religious denomination of which said J. W. Murphy was a member; and was a trusted friend and confidential adviser in whom said J. W. Murphy reposed great confidence. That the claimant, by appealing to the religious and charitable instincts of said J. "W. Murphy, arousing and exciting his prejudice against inherited wealth, falsely holding himself out ' as unselfishly contributing his own services, time and influence to the promotion of religious and educational work, and by other means at present unknown to the defendant, so overcame his will as to cause him to execute the instrument described in said claim, the execution of said instrument being the act and deed of the claimant rather than that of said J. W. Murphy.”
The undisputed evidence, or the tendency of the evidence, from which the jury could have so found, shows that, when the note in question was executed, deceased was in his eighty-sixth year. His wife, five children, and two sons of his deceased daughter were then living. He owned property, in Iowa and some land in Texas, reasonably worth, in the aggregate, $30,000. He was owing four notes executed to Kansas City University for sums aggregating $20,000, in addition to his other debts. About the year 1898, deceased had a severe illness, after which he was never as strong as formerly. During the last five or six years of his life, he became less self-reliant and more forgetful. He would start to speak on one subject and would not finish. His neighbors observed a change in his mental condition. He was badly stooped over, feeble and weak. He would tell things and a little while later repeat the same thing. He had three meals a day with the family, but he had a room of his own in which he kept a table, writing materials, a bucket of water, crackers, candy, and other eatables, which room was not clean, and he objected to its being cleaned. Into this room
Deceased was a member of the Methodist Protestant Church more than forty-eight years and was active and prominent in church work. A few years before his death, he had a considerable financial loss in a manner the witness testifying thereto did not wish to relate. Five or six years before Murphy’s death, Rev. Brown and appellant had a conversation regarding Murphy’s being feeble, in which conversation Geddes said that Murphy was not competent, growing out of the fact of his age and infirmities. This conversation is testified to by Brown and not denied by Geddes.
Plaintiff was one of the trustees of the Kansas City University from its first existence until a few months before the trial of this case in the district court. He was field agent and solicitor for the university prior to 1907, for a number of years. He was field agent and special agent of the university for three' years, beginning in August, 1907, and was special agent for two years. He was such field agent when the Murphy notes to the university were secured. While Geddes was a member of the board, he was employed to solicit donations and contributions. The terms of his employment prior to 1907 do not appear; thereafter his compensation was fixed by a resolution of the university at sixteen per cent, on all contributions of cash and notes secured by him, and his traveling expenses. The commission was to be paid out of the cash collected by plaintiff during the period of .Iris employment or after the expiration, of his employment, from proceeds of notes personally secured by him. A resolution of the trustees of the university, passed in September, 1910, shows that there was due plaintiff at that time $3,126. A personal memorandum kept by the chancellor of the university shows a balance of $3,056.75 due March 1, 1910.
Plaintiff was instrumental in securing the execution by Murphy of four notes to the treasurer of the university, each
Plaintiff was a member of the board of church extension of the Iowa Annual Conference of the Methodist Protestant Church, also a member of the board of trustees of the university. Deceased was a member only of the first named board. While plaintiff was a member of both boards, de
‘11 note what you say about the J. W. Murphy note and certainly sincerely thank you for it. Since last writing you I obtained positive knowledge concerning that note. Murphy says that I persuaded him to give it in a talk I had with him a short time before the General Conference. He-was not asked for this information and gave it just because he wanted to I suppose. He does not know that you and I have had a word about the matter. I do not mean to say that I did not start him to talking about the gift, for I did, and then he told me all about it as I had hoped he might do.”
•In the same year, plaintiff wrote.to the chancellor:
' “For six months I have been trying to get J. "W. Murphy for some large amount, and he had partially promised. Today he came and told me, in great glee, that yesterday he signed and mailed to you a note for $4,000. He expected me to feel very glad that he had done that generous act, and I was very glad, and thanked him very much; but found out that I have selfishness enough still left in me to feel some vinegary regret that he had not let me report, that snug gift.”
In another letter, plaintiff wrote to the same person:
“Concerning the J. W. Murphy note I feel like saying but little. I was not surprised that he sent it directly to you. I knew him well enough to know that this was just what he would probably do, and I had said to him that he might hand it to me or mail to you as he should choose. This*642 was a short time to Gen’l Conf., when I went to his place and talked matters over with him. He told me of the difficulties in the way, but it was in that talk that I became satisfied that he would put up another mortuary note. After his wife’s return from the “West, and within the past month, I went to his home twice, making other matters an excuse for going, but my real purpose was to get the university before her in a way helpful to him, and I felt that I accomplished something of the kind, and I think he felt so. But how much all I have done had to do with his gift I am sure I do not know. It may have had very little or nothing to do with it. I think that an agent gets many a note largely through the aid of your influence with many of our people. I have often spoken of this to you and to others. I have said that I was not surprised, and I was not, but when he told me he had sent it in I realized for the first time what the effect might be upon myself and was overtaken with the sense of chagrin.. Yet he did what I supposed he would do. It was only by the breadth of a hair that I was permitted to turn over to the university the Ch. Ecy. loan. Murphy wanted to do it himself, and I told him to go ahead. At the very last, circumstances put the notes, money, etc., into my hands to deliver. It is not because J. W. distrusts another; it is just Murphy’s way, and it is usually best to humor it. Then he did not and does not know that sending his note through me could make any difference to me. ... I do not doubt that the pull of your influence on Brother Murphy had very much to do with his gift. I believed it all the time and tried to make the very best use of it.”
In regard to the $4,000 loan to the university by the extension board, a witness says: “In this particular case, Mr. Geddes and Mr. Murphy agreed — they seemed to be one. There seemed to be no diversity of opinion between them in regard to the loan.”
The testimony shows that Murphy was a man of positive
Murphy pnid Geddes, as trustee of the university, September 27, 1910, the sum of $3,000. Geddes, as trustee, executed to deceased two receipts therefor. These receipts are regarded as important and we set them out.
“Newton, Iowa, September 27, 1910.
“Received of J. W. Murphy, $2,900 to be applied as part payment on a mortuary note of $10,000, bearing date of June, 1909.
“$2,900. S. J. Geddes,
“Trustee of Kansas City University.”
“Newton, Iowa, September 27, 1910.
“Received of J. W. Murphy one hundred & no/100 dollars, in full of one promissory note, of date of September 5, 1907, given in favor of Kansas City University.
“$100. . S. J. Geddes,
“Trustee of Kansas City University.”
The letter by plaintiff enclosing these receipts will be referred to later.
It will be noticed that these receipts do not refer to the
October 5, 1910, seventeen days before the $2,300 note was executed, deceased wrote Chancellor Stephens that he had paid Geddes the $3,000. Geddes retained the $3,000, applying it on his account against the university, and writing the chancellor on September 28th, saying, ‘ ‘ I retain the $3,000 and ask the same to be charged to my account.” The university complied with plaintiff’s request. The record is silent regarding the unpaid balance of said account, if any there was. It is the contention of defendant that the payment of the $3,000 on September 27th had no connection with the note in suit of October 22d, and that the two transactions are entirely independent.
It is insisted by defendant that there is no evidence tending to show that the execution of the $2,300 note entered into or affected Geddes’ account against the university. True, the sons of Murphy testified that plaintiff, as a part of his statement to them, stated, in substance, that the consideration for the $2,300 note was the cancellation by him of a corresponding amount of his claim against the university. This was a self-serving declaration by plaintiff, and while it is proper to consider it in connection with the rest of his declarations on that subject, we think the other circumstances in the case were such that the jury could have found against the plaintiff as to such self-serving statement. That is to say, the other circumstances were such that therefrom the jury might properly draw the inference that the alleged consideration for the $2,300 note was not the cancellation of plaintiff’s claim against the university for commissions. The documentary evidence is fragmentary. Murphy is dead and cannot give his version of the transaction and plaintiff’s mouth is closed by the statute as to personal transactions and communications, so that it is necessarily a matter of inference
The circumstances narrated show the general tendency of the testimony; there are some other circumstances which will be stated in connection with the different points. There are some others which should be briefly noticed. Mr. Murphy was a member of and an officer in the church before referred to, from the time of its organization until his death. He was much interested in the Kansas City University. In 1910, he sold a farm in Marshall county and gave $1,000 to each of his sons and $500 to each of his daughters. But it is shown that his wife opposed selling the land unless he would agree to divide a part at least of the proceeds among his children. At different times, deceased had said that he expected to give his property to some benevolent institution. There is evidence that he thought his children were trying to get his money, but we fail to find anything in the record to justify, such a belief. Deceased continued to manage his own personal affairs and continued to hold the office of secretary of the Iowa Conference and other offices in the church until his death.
Appellant xirges that there is no affirmative showing to-negative the possibility of his having cancelled this small balance as a consideration for the note in suit. In answer to this, defendant contends that plaintiff is not in a position to urge a reversal because of the absence of such evidence, because the defendant offered to show that such balance had not been cancelled and, upon objection by plaintiff, the court excluded such evidence. Defendant concedes that such ruling was erroneous. Defendant’s cases upon this proposition will be referred to later in the opinion. It is, of course, true, as contended by appellant, that a contract in writing signed by the party to be bound imports a consideration. The trial court, in the instant ease, placed the burden of proof upon defendant to show want of consideration. The plaintiff cites eases holding that verdicts must have evidence to support them and, where there is no substantial evidence to overcome a prima-faeie case, a verdict should be directed.
But we are of opinion that there was sufficient evidence of want of consideration to take the case to the jury upon that issue. When plaintiff urged Bower Murphy and Ells-worth Murphy, sons of decedent, to consent to> the allowance and payment of the note in suit, he undertook to state what the consideration for the note was. The situation was such
Objection to one item alone may imply admission of the rest. Abbott’s Trial Evidence, p. 566 (2d Ed.).
“Conduct of a party inconsistent with his present contention may tend to show that the latter is an afterthought, and proof of such conduct is therefore competent as an admission. Thus, where defendant denies liability, it may be shown
From the evidence, the jury could have found that, at the time the note in suit was given, plaintiff was indebted to Murphy for more than the amount of the note, counting the money Murphy had paid out for him in cancelling various debts, and could have found from the evidence that the note constituted no part of the $3,000 payment. As stated, the $3,000 payment made to plaintiff by Murphy was nearly a month before the $2,300 note was executed, and in referring to this $3,000, plaintiff himself speaks of it as a payment in
“J. "W. Murphy has paid to me for the University the sum of $3,000 and I have receipted to him for same. The money is to be applied as follows (as shown by the receipts I gave him, and as shown by the receipts which I now enclose to you): . . . I retain the $3,000 and ask the same to be charged to my account as ordered by the receipts enclosed. . . . The payment of this money by Mr. Murphy at this time greatly relieves my financial strain, and of course will be gratifying to you and to the university.”
None of the documents referring to this $3,000 refer to the $2,300 note as a part of it. So far as the note is concerned, that could not relieve plaintiff’s financial strain because, by its terms, it was “non-negotiable” and could not be used as collateral, and there is no evidence that he did obtain money upon the note. It is contended by appellant that the use of the term “money” by plaintiff in the letter was used in its broad and popular sense and that it could include the note in question. It is true that it is used in that sense sometimes, but we are of opinion that the inferences to be drawn from the circumstances in this case were for the jury. They might have adopted plaintiff’s theory, but they did not do so.
7' BEnoitt right ciusíonTf’ evR cIgxicg i non-nocessity to con-The offered evidence just referred to was contained in a deposition. The answers to the questions did not get to the jury because of plaintiff’s objections. But the answers thereto are set out in the record in this court, and it is said by plaintiff that, if the evidence had been admitted, it would not have established the fact which plaintiff now says it was incumbent upon defendant to- prove. It may not have been sufficient to have convinced the jury, but the excluded evidence would tend to prove the fact. Aside from this, the ruling of the court upon plaintiff’s objection to the offered evidence was, in effect, an exclusion of all evidence upon that subject. So far as we know, the defendant may have had other witnesses to prove the point; but defendant had the right to assume that, if other similar evidence had been offered, it would have been excluded. As
Defendant contends that, even if it be conceded that the defense of undue influence was not properly pleaded because of failure to allege a return or tender of any consideration received, nevertheless appellant waived the objection by proceeding to trial as though the issue were in the case, and by failing to urge any objections to evidence of undue influence on account of alleged defect in the answer. There was no motion by plaintiff for a more specific statement of the answer. Plaintiff objected to some of the evidence by the general objection that it was incompetent, irrelevant and immaterial, but did not, in the objection, call the court’s attention specifically to the point relied upon in the motion for new trial and here — that defendant had failed
“To avail themselves of the fraud mentioned as a complete defense, the contract must have been rescinded, and appellant contends that rescission was neither pleaded nor proven. It may be, as said by appellee, that the allegations in the answer were sufficient, but these were withdrawn by the amended and substituted answer, which, though specifically alleging the fraud, omitted any reference to rescission. The trial, however, proceeded on the theory that whether there had been a rescission was in issue. No objection to the evidence bearing thereon because not alleged was interposed. ... We are satisfied that the defect in the amended and substituted answer was overlooked at the trial which proceeded as though rescission of the contract had been averred therein. In these circumstances the omission cannot be urged as a ground of reversal” — citing cases. Cox v. Cline, 147 Iowa, at 356.
“Evidence was introduced, without objection, not only showing the understanding between the parties, not expressed in the lease, was that the tenant should have the milk after raising the calves, but also tending to show that in the practical execution of the terms of the lease both treated and expressly agreed to treat the cream or butter fat as equivalent to butter, the manufactured article. The difference to the landlord was insignificant, and if in carrying out the lease he, as well as the tenant, recognized the sale of the butter fat as practically equivalent to that of butter, the former thereafter should not be permitted to insist upon any distinction between them. Possibly the answer was not as specific as it should have been; for, while it put in issue the claim that the tenant had not divided equally the ‘other*656 propeeds of the farm, ’ the trial proceeded on the theory that the pleading was sufficient, and, as this matter was the only one wherein there was any dispute in the evidence, it could not have escaped the attention of the court. Attention to the course of the trial was its duty, and, the parties having treated the pleading as sufficiently specific, the court should have accepted their construction. Were this to be regarded as a separate and distinct issue, there might be some doubt whether the court might be held to have erred in not submitting it. In several cases it has been held proper to submit issues not raised by the pleadings, when consent thereto or acquiescence therein has been established by failure to object to the introduction of evidence bearing thereon or in some other manner. See Fenner v. Crips, 109 Iowa 455. And where this has happened the refusal to submit such an issue was adjudged error in Hanson v. Kline, 136 Iowa 101.” McLeod v. Thompson, 138 Iowa 304, at 306.
Some of these cases have been decided since paragraph 9 of Sec. 3755 was added to that section of the Code of 1897. If the parties at the trial treated this matter of tender as though it had been pleaded, it would be the same as though it had in fact been pleaded and, under such circumstances, the rule in prior cases as to waiver would not be changed by the addition to Sec. 3755. We think, under the record in this case, the parties treated the question now under consideration as properly in the case, and that plaintiff may not now ask a reversal on that ground.
There was no reversible error and the judgment is— Affirmed.