85 P. 509 | Or. | 1906
delivered the opinion of the court.
The transcript shows that about January 26, 1900, the defendant A. Heise leased two hop-yards in Polk County, containing 25 and 20 acres, from his mother-in-law, Mrs. N. W. Harris, and brother-in-law, E. L. Harris, respectively, for the term of five years, the consideration being one fifth of the hops to be raised annually thereon. About thé same time he entered into an agreement with plaintiffs to cultivate, sell and deliver to them 30,000 pounds of merchantable hops on of before-the 15th of October of each year during the term of his leases, at 10 cents a pound, the plaintiffs to make certain advances to enable him to cultivate the yards and to harvest the hops. Heise complied with his contract during the first two years, except that in 1902 he attempted secretly to dispose of about 35 bales of hops, but was prevented from doing so by plaintiffs. When he settled with plaintiffs for the year 1902, he had received such advances on account of his crop that there remained only $288.50 due him for the season’s work. The plaintiffs charged him $69.49 for examining his hops, and also assessed to him premiums for insurance on his crop taken out in their names in pursuance of the terms of the contract but the policies for which they refused to exhibit to him. The controversy arising in relation to these matters culminated in a notice given by Heise to plaintiffs that he would not longer be bound by the terms of his contract, and that he should surrender his interest in the leases to the owners of the demised premises. The plaintiffs thereupon offered to operate the yards in fulfillment of the terms of the contract, but Heise refused to assign to them any part of his term. Of the sum of money so received he paid his brother-in-law $180, and being still in debt, an action was instituted against him in a justice’s court, so that at that time he owed several hundred dollars and had no money or property with which to make payment.
Though Heise assisted in cultivating and harvesting the hops, for which service it does not appear that he received any com
“Q. Are you acquainted with A. Heise?
A. Yes, sir.
Q. Did you see him at that time?
A. Yes, sir.
Q. What was he doing?
A. Nothing; just joshing the boys; having a good deal of fun once in a while.
Q. Did you see him there all the time?
A. No, sir.”
E. L. Harris, as defendants’ witness, testified that in October, 1902, Heise told him he did not have sufficient money with which to operate the hopyards, and for that reason he was not going to rent them any longer; that the witness did not then begin to look for another tenant or think much about the matter until he obtained releases of the demised premises; that he negotiated with Mrs. Heise about two days before he secured her deed of the real property which she inherited from her father; and that after securing such releases and deed, he then advised his sister and her son to rent the hopyards, which proposal having been accepted, leases thereof were executed to them. Mrs. Heise, as a witness for herself, testified that, knowing her husband did not intend to raise hops in 1903, she sold her interest in the real property to obtain money with which to educate her children; that from the sum so received she paid an old grocery bill of about $100, which her husband was unable to liquidate; that after he had executed releases of all bis interests in the demised premises and subsequent to the making of her deed, her brother told her that as she then had the necessary means, it would be advisable for her and her son to rent the hopyards, and that at his suggestion she consented to the proposal in pursuance of which the leases were made out to them.
Though Heise’s resentment towards plaintiffs may have afforded a motive for his desire to renounce his rights under the leases, his lack of sufficient means to continue raising hops was evidently the controlling cause that induced such action; but, whatever the reason may have been that brought about such result, we think the, testimony clearly shows that neither his wife nor his son was a party to any scheme, if such existed, to defraud the plaintiffs. Heise performed some labor in cultivating and harvesting hops. He was not a diligent worker, however, if the testimony of Seiwert, hereinbefore quoted, is to be believed. His wife surpassed him in the management of the hopyard, thereby demonstrating that she possessed the greater interest therein, which is a circumstance tending to corroborate her testimony respecting the bom fides of the transaction. If Heise had labored faithfully at the business, such work would not necessarily establish the fact that he was the beneficiary of a secret trust or render his wife’s money that she had invested in good faith subject to the payment of his debts. In McCormack Mach. Co. v. Ponder, 123 Iowa, 17 (98