58 Ind. App. 665 | Ind. Ct. App. | 1914
This suit was brought by Effie Gifford, administratrix of the estate of Otho Gifford, deceased, against appellant, Martha Gifford, and Benjamin P. Gifford, to recover for certain services alleged to have been rendered appellant and her husband, Absalom Gifford, whose death occurred before that of appellee’s decedent. The amended complaint on which the case was tried was in three paragraphs. Benjamin P. Gifford filed an answer disclaiming any interest in the real estate described in appellee’s complaint. Appellant filed answer in twelve paragraphs, the first of which was a general denial. The answers set up in different ways, pleas of payment, suretyship, coverture, and the six-year statute of limitations. Demurrers to the special answers were overruled. The issues were closed by a reply in general denial to each paragraph of special answer. The case was tried by the court without a jury and resulted in a finding and judgment for appellee in the sum of $750 against appellant, Martha Gifford, and in favor of Benjamin P. Gifford for costs. Appellant made a motion for a new trial which was overruled and an exception duly reserved.
The errors relied on for reversal are, (1) overruling the demurrer to the amended complaint, (2) overruling appellant’s motion for a new trial, and (3) overruling appellant’s motion to modify the judgment. The grounds of the motion for a new trial relied on for reversal are, (1) that the finding of the court is not sustained by sufficient evidence, (2) error in the assessment of the amount of the recovery, the same being too large, and (3) error in the admission of certain evidence and in refusing to strike the same out of the record.
The first paragraph of amended complaint shows that ap
Error of the trial court in the admission of certain evidence is urged by appellant. Effie Gifford, the surviving wife of Otho "W. Gifford, was permitted over appellant’s objection, to testify to certain declarations of said decedent, Otho W. Gifford, made in his lifetime, relating to his possession of, and right to, the real estate on which they then resided, and which it was alleged was to become the property of Otho in payment for services rendered appellant and her
In the case at bar, declarations of Otho "W. Gifford made while in possession of the farm were received on the theory that his possession and accompanying declarations tended to prove the contract under which he claimed to occupy the farm and render the services for which he was to qbtain title to sixty acres of land owned by his parents. Here the ultimate fact to be established was the alleged contract. If he held possession as a tenant only, or in pursuance of such contract, the fact of possession wurald be the same in either event. So we can not see how the fact of possession was material or competent evidence under the issues involved in this case, which is a suit upon account for services rendered and money expended. If that fact was not competent and material evidence, the declarations made while in possession explanatory thereof were not competent evidence, and do not fall within the exception which permits such declarations to be received in evidence, notwithstanding the rule excluding self-serving declarations. We therefore conclude that it was error to receive in evidence the statements and declarations of Otho W. Gifford, deceased, testified to by Effie Gifford, his widow. The declarations and statements of Otho "W. Gifford made while in possession of the farm and testified to by other witnesses were in the nature of self-serving declarations, and some of them bore more directly on the questions at issue than the statements given in evidence by Effie Gifford, and, therefore, were inadmissible as evidence for the reasons already stated.
The averments of the complaint show a contract under which Absalom and Martha Gifford were jointly and primarily liable as principals. Facts are pleaded which show that the arrangement was beneficial to each and that the title to the real estate was held by them jointly as tenants by entireties; that the parties themselves interpreted and
For the errors of the court in the admission of evidence, the judgment is reversed with instructions to sustain appellant’s motion for a new trial.
Note.—Reported in 107 N. E. 808. See, also, under (1) 3 Cyc. 291; 31 Cyc. 316; (2) 40 Cyc. 2353; (3) 40 Cyc. 2355; (4, 5) 16 Cyc. 1166; (6) 16 Cyc. 1202; (7) 21 Cyc. 1570; (8) 16 Cyc. 980, 982; (9) 16 Cyc. 1037; (12) 3 Cyc. 348.