181 Iowa 267 | Iowa | 1917
By stipulation, the two cases were tried together, and are treated as one case on this appeal. For convenience, we shall refer to appellee, Minion, as plaintiff. In, the first case, it was alleged, substantially, that, in February, 1903, M. L. Adams, for the partnership, made an oral contract
Defendants denied that either the copartnership or the members thereof had, at the time of the alleged contract with M. L. Adams, in 1903, become the owner of all the property now claimed by plaintiff under the contract; denied the existence of the contracts; averred that Minion was an employe working for wages which were accepted by him in full compensation; denied that plaintiff ever had possession of the plant; and asserted that the contract was in contravention of the statute of frauds; that, by his conduct, admissions and statements for five months subsequent to the death of A. M. Adams, plaintiff estopped himself to assert any individual right or title in the property;
Some time after the cases were tried and submitted, there was filed an amendment to plaintiff’s reply, in which .it was alleged that an accounting had been had between plaintiff and the administrators. Appellant says that this last pleading is an estray, as it is not supported by any evidence in the record. The evidence is not sufficient for the court to make an accounting, and the trial court so held, and continued that feature of the case until the subsequent term, for that purpose, and the decree did not adjudicate that question. By the decree, plaintiff was given the printing plant and the real estate used in connection therewith, subject to an encumbrance, and the second case was dismissed on the merits. In this second case, the administrators claimed that deceased, A. M. Adams, was the sole owner of the plant; that, subsequent to his death, the administrators took possession of the property and prepared an inventory and appraised the same; that they continued to emplo3 plaintiff until June, 1915, at which time they discharged him; that on the next day Minion returned to the premises and forcibly took possession of the plant; and they asked an injunction restraining him from interfering with their possession as administrators. Minion’s answer to this petition was that he became absolute owner of said premises by reason of the agreement before referred to. He denied that he was ever in the employ of the administrators; denied that the administrators were ever in possession of the property.
A brief statement of the facts may be helpful. A. M. Adams began the publication of the “Humboldt Independent” in the early ’70’s; the plant was run and owned by
The plaintiff testified that he had such a contract, but did not say that he had it with the Adamses; he did testify, however, that he had such a contract with no one other than the Adamses. Proper objection ivas made as to the competency of plaintiff as a witness and to his evidence, under Section 4604 of the Code, but appellee contends that the cross-examination was so broad that the objection was waived. At the time of the alleged agreement in 1903, plaintiff was receiving $12 per week, and at that time, Mrs. Folk, plaintiff’s daughter, was between 7 and 8 years of age, and plaintiff’s son was 11 years of age. It is claimed by appellants that the testimony of these children is of little or no weight, because of their ages. The daughter testifies that she remembered and told of the transaction soon after it occurred, because she was so tickled over it, to think that Mrs. Adams thought enough of her father, and he enough of her, to stay with them, and that they would give him the office if he did. In his testimony, plaintiff claimed that, subsequent to the conversation he had with Mrs. Adams in 1903, there was a change in his connection with the paper, and that from that time he assumed a different attitude and responsibility in connection with the management of the business. He testifies, over objection, that additions to the plant or business or equipment were to be paid out of the earnings of the business, and that, after the death of Mrs. Adams in 1909, the earnings of the business above the living expenses of A. M. Adams were to be his. As to the property plaintiff was to have, the daughter testified that he was to have the office and everything connected with it; that is, that it would be his upon the death of the survivor. The son puts it that the plant and everything should then be the plaintiff’s. Plaintiff puts it that, upon the death of
The trial court stated in an opinion, and found, that, if the case depended upon the evidence of plaintiff and the two children, the evidence would not be sufficient, because of the tender years of the children, and because of the incompetency of the plaintiff as to at least a x>art of his evidence, and because of inconsistent statements and conduct of the plaintiff. The court stated, however, that plaintiff was a fair and candid Avitness. It is possible that the cross-examination at some points exceeded the direct examination, and that some oí plaintiff’s testimony should be considered. We agree Avith the trial court that the evidence of plaintiff and his children would not be sufficient, but there Avas other evidence, which will he referred to later.
Appellee relies upon McElhenney v. Hendricks, 82 Iowa 657, Campbell v. Collins, 133 Iowa 152, and Secor v. Siver, 161 N. W. 769, to sustain his proposition that, because of the
“Q. Now, Mr. Minion, without naming any parties with whom that contract was made, state to the court, what, if any, contract ivas made between jmu and any person or persons, regarding the employment and the title of the property, in connection with the ‘Humboldt Independent.’ A. I was to manage and operate the ‘Independent’ and I was to receive my living, and to conduct the same as my own, and I was to do that until the death of the survivor of either Mr. or Mrs. Adams, — that is, A. M. Adams and M. L. Adams, — and that, upon the. death of the last surviving member, the plant, including the building and real estate and business and everything connected with the publishing outfit, was to be mine, clear and free,” — and so on, at great length.
To hold that, under .sficli circumstances, a person may give the details of a contract involving personal transactions and communications with deceased persons, would be
His explanation of these matters is that he had understood, and had been told, that a parol contract such as this could not be enforced, and that he did not know his rights until he consulted attorneys, about the time the suit was brought. That is precisely the claim that defendants are now making in this case, and insisting upon it. ■ The evidence is, too, that plaintiff expected deceased to vest the title in him by will, and that he and others were looking for a will among the papers of deceased, A. M. Adams. Mrs. Adams did make a will, which was duly probated, by which she gave all the property to her husband. It should have been said that we think the case presents, and must be determined upon, fact questions very largely, although appellants contend that the law questions are controlling. As-
Going now to the other testimony, we shall attempt to state our conclusions in regard to it in a general way, without going into details, since, as we have often said, it is not practicable to go into the evidence in detail in fact cases. There were fourteen witnesses, outside of plaintiff and his two children. Four of these testify directly to statements by deceased to the effect that he had made a contract with plaintiff by which plaintiff was to have the plant when the Adamses were through with it. One of these witnesses testifies that deceased had said lie had made all arrangements, and, again, that it was definitely understood between deceased and Minion, and that deceased told witness he had promised plaintiff that the plant should be his when the Adamses were dead. Another witness testifies to substantially the same thing, and still a third testifies to a statement made by Adams to the effect that Minion had once left him, and that Adams told him that he got Minion back with the understanding that the property should be his when he (Adams) was through with it, and that the property was really Minion’s, really Minion’s plant, and that eventually it should be his. Another testified to statements by deceased as to the low wages being paid Minion, and that the reason was that, at Adams’ death, plaintiff was to have the property. Several other witnesses testify to a state of facts from which it ought to be inferred, in connection with all the other evidence in the case, that there was a contract. One testifies that arrangements had been made by which the plant was to go to plaintiff when the surviving Adams died, and that arrangements had been made to this effect years ago. Another says that deceased told him that arrangements had been made to leave it all to Minion. Another testifies that deceased told him that every
C. W. Adams, one of the administrators, the brother of deceased, A. M. Adams, testified that he was familiar with plaintiff’s history since his marriage up until the time of his brother’s death, and that plaintiff was an industrious and honest young man, and that-he was continuously in the printing establishment from 1882 to the present time. He testifies that, when his brother was at home, he could not say that the brother was active in the newspaper business, but he did some writing; that it was his. habit, ever since witness can remember, to get through the world as easily as he could; that during the last -20 years he had not seen deceased do any of the mechanical work around the plant, though he did that when it first started. The same witness, testifying for defendant, says that, though he saw deceased
Without going further into the evidence, it is our conclusion that there was a contract as alleged, and that plaintiff performed his part of the contract, and that it ivas in all respects complete, except the vesting of the legal title in the plaintiff. This was not to be done until the death of the survivor. As to the extent of the contract and what property was included, the evidence of the witnesses in testifying to the conversations with deceased was that he sometimes referred to the property as the “plant,” sometimes as the “property,” sometimes as the “whole thing',” sometimes as “this ranch and everything,” and so on. But under all the evidence, we think the contract is sufficiently proved as to the newspaper business, the plant, and the real estate used in connection therewith. In proving a contract of this kind, if it is ever to be established in any case, the evidence is made up, very often, in large part by statements of the parties to different persons, and made up of fragments put together as a whole. In making such statements, the party making them would not be likely to use the same language to every person, nor use the same degree of accuracy that he would in drawing a legal document.
Some question is made as to where the money came from that went into the business. Under the evidence, the contract and the understanding between plaintiff and - deceased were that plaintiff was to have the newspaper plant and the real estate used in connection with it as it stood Avhen Mr. Adams died. Appellants cite a number of cases, among them Boeck v. Milke, 141 Iowa 713, McDonald v. Basom, 102 Iowa 419, 124, Bremer v. Haag, 151 Iowa 449, Bevington v. Bevington, 133 Iowa 351, Wilson v. Wilson, 99 Iowa 688, Holmes v. Connable, 111 Iowa 298, Briles v. Goodrich, 116 Iowa 517, Ross v. Ross, 148 Iowa 729, 733,
Appellee contends that the evidence establishes his claim with the certainty required in this class of cases, and cites Chehak v. Battles, 133 Iowa 107; Stiles v. Breed, 151 Iowa 86; Horner v. Maxwell, 171 Iowa 660; Daniels v. Butler, 169 Iowa 65; and other cases.
Without going into a discussion of these several cases, it is our conclusion that, under the record, plaintiff is entitled to the relief granted by the district court. The judgment and decree are therefore — Affirmed.