184 N.W. 978 | S.D. | 1921
This is an action brought to recover the' value of certain property alleged to have been unlawfully con-', verted by defendant. Trial was had before the court and jury, and verdict and judgment were for plaintiff. Defendant has appealed from the judgment and from an order denying a new trial.
The property in question had formerly been the property of one Nicholson, and had all been taken into the possession of defendant just prior to Nicholson's death, some of it prior to the execution of the agreement hereafter referred to. Respondent is the administrator of Nicholson's estate. Appellant admits that he took such property into his possession and had converted it to his own use, but he attempts to justify his actions because of an alleged bill of sale of this property to him'. Respondent does not concede that Nicholson ever executed this bill of sale, and contends that, if it was executed 'by him, that he was mentally incompetent to understand the nature of what he was doing, and, further, that its execution was procured through fraud.
Appellant contends that there was no evidence as to the value of these bonds, and that therefore they could not be considered by the jury. Without evidence as to value, it would be presumed that they were of their face value. Appellant says, however, that this court must take judicial notice that these bonds were not worth par. There is nothing showing what issue of bonds these were; but, if this court should take judicial notice of the market value of same, it would take judicial notice that they were worth at least enough to compel the jury to render a verdict as large as the one rendered if their verdict was for i-espondent; and this without allowing exemplary damages.
In our opinion, the strongest evidence of the mental incompetency of Nicholson, and evidence from which the jury might well infer that he was incapable of understanding and did not understand the nature and effect of the instruments executed by him, is the relationship of Nicholson to appellant and to certain other parties, the unreasonable provisions of the written agreement, and the discrepancies between the conditions of such agreement and the instructions which appellant testified were given to him 'by Nicholson. The only relationship existing between Nicholson and appellant, so far as the testimony shows, was that commonly existing between an officer of a bank and a patron of such bank. There were no social relations existing between them. Appellant had not, so far as the evidence shows, personally cared for Nicholson during this last sickness. Mrs. Risehe lived in Nicholson’s home, and had been the one Who had mainly cared for him. Warschawsky and wife 'had taken deep interest in Nicholson, had kept watch over his condition during his sickness, had visited him often; and Warschawsky had sat up with him nights during his later sickness. Nicholson expressed deep gratitude for what Mrs. Risehe and Warschawsky had done for him. Appellant, after testifying to the four different days upon which he conversed with Nicholson in relation to the terms of the
Defendant claims to have made a notation of all of these instructions, and that it is upon such notations that he drew the contract. He did not produce his notations, and he gave no other or further testimony as to the directions he received from Nichol,son. From such directions, it is apparent that it was Nicholson’s intention that Mrs. Rische should have the house, certain personal property, and the $1,000 in money, undoubtedly to be given her in consideration of what she had done for Nicholson. There was no suggestion or hint that Nicholson expected Mrs. Rische to continue to care for - him as a condition to her receiving such property and money, or that she was to wait until Nicholson’s death 'before receiving same. Under such directions, it would appear that Nicholson desired that Warschawsky should receive $500 for what he had already done, as there was no suggestion that he should wait for the same until the death of Nicholson. In view of such directions the jury might well have wondered why the deed to the home was not made directly to Mrs. Rische, the $1,000 and other personal property not transferred directly to Mrs. Rische, and the $500 not transferred directly to War-schawsky. The jury may well have inferred, from the fact that the instruments as drawn did not conform, in the above respects, with the instructions, that Nicholson did not comprehend the import of the instruments which he signed. But what is much more important and may have led the jury to believe that Nicholson did not comprehend the nature of the papers he was signing,
In such agreement, appellant covenanted that, “out of the property so turned over to him,” he would provide proper care and necessities and all comforts reasonably possible during the remainder of Nicholson’s life, and would pay “out of such property” all the expenses for such care, together with the debts owing to any one by Nicholson, and, after his death, provide a proper burial and have a monument erected. There was absolutely no covenant whereby appellant bound himself, in any way, to care for or provide for Nicholson after the proceeds of Nicholson’s property had all been used in providing for his care. This feature of the agreement might have impressed the jury as being somewhat “jug-handled,” and one which no sane man would execute when he was turning over to defendant over $12,000 worth of personal property, as well as a house and lot, and especially in view ■ of the fact that there is no evidence that Nicholson was owing a dollar. What may have impressed the jury even more forcibly with the belief that Nicholson did not understand the import of the written agreement is the fact that, under such agreement, neither the house and lot, nor the $1,000, nor the other personal property, or any part thereof, was to be paid or turned over to Mrs. Rische, unless the house and lot and sufficient money were left at the time of Nicholson’s death, it being provided that all this property should be first charged with the care of Nicholson, and with his debts and 'burial expenses, prior to its being charged with the payment of anything to Mrs. Rische; and, more monstrous than that, in the light of the instructions which-appellant testified to, this written agreement, after speaking of this $1,000 and the home and the personal effects, which were to go to Mrs. Rische (if they all remained after Nicholson had died), contained the further provision in relation to all of this property:
“Which he shall give to her only in the .event that she will take proper care of the party of the first part during his natural life; and should she not take proper care of the said party of the said first part during the remainder of his natural life, said party of the second part shall pay her only a reasonable sum for the time she did actually care for first party.”
The judgment and order appealed from are affirmed.