95 N.W.2d 287 | Iowa | 1959
Rosie Brooks, a resident of Des Moines, died on December 21, 1957, her husband, Alonzo W. Brooks, having predeceased her. Luther T. Glanton, Jr. was appointed administrator of her estate. On or about March 14, 1958, W. Lawrence Oliver filed his verified claim against her estate as follows:
“W. Lawrence Oliver, plaintiff, claims of Luther T. Glanton, Jr., administrator of the estate of said decedent the sum of One Thousand Ninety-one forty-two cents ($1091.42) Dollars and interest at the rate of 5 per cent from the 1st day of January, 1954,
“That the plaintiff above rendered legal services to the deceased, Rosie Brooks, and her deceased husband, Alonzo*664 Brooks, during both of their lifetimes, which the deceased, Rosie Brooks, agreed to pay plaintiff for same as follows to-wit:
“Two trips to1 Chicago before Railroad Adjustment Board $ 300.00
“Trial in Federal District Court a,t Des Moines 350.00
“Preparing and presenting appeal to- Circuit Court in St. Louis, Missouri, accompanied by both deceased 750.00
“Payment of brief for’ Railroad Adjustment
Board 91.42
Total $1491.42
“That the deceased, Rosie Brooks, paid plaintiff the sum of $400.00, the last payment in October, 1957, of $100.00 with promise to pay balance in full in sum of $1091.42 for legal services as enumerated above ,as now fully appears by the statement above hereto- attached, marked Exhibit ‘A’ and made a part hereof.
“Wherefore, plaintiff asks the- allowance of said claim.”
The administrator filed his resistance to- the claim alleging it shows on its face- that it is within the- statute of frauds in that it seeks to hold the estate responsible for the debts and defaults of a third person without the decedent having acknowledged the indebtedness in writing; that the- claim is barred by the statute of limitations; that at most the claim could be based only on an open account barred in five years; that the services were rendered in 1947, 1948 and 1949 to Alonzo Brooks, decedent’s husband, who predeceased her and that the services were not reasonable and necessary family expenses.
Claimant filed his reply to said resistance denying the material allegations thereof and stating that Alonzo Brooks left no estate but transferred -all his property during 'his lifetime to his wife, Rosie Brooks-, and that he represented said parties, in the transfer.
The district court ordered that the issues thus raised be heard by the referee in probate and on May 29, 1958', the- hearing was held. Octave B. Baker testified for claimant that in the
“Q. And what did you hear Bosie Brooks say and what did you see her do and what did you hear me say and what did you see me do? A. I came to her house to pay our rent and you were there, and you and Mrs. Brooks were in the living room and you was about ready to leave, and I seen you give Mrs. Brooks a receipt. She gave you some money and I did hear her say, ‘Mr. Oliver, I intend to pay you every cent that I ¡owe you because I am the one that hired you in the first place.’ Now that is all I heard. Q. Did you see a receipt being given to her by me? A. Yes, I did. Q. Did you see her give me any money? A. No. Q. This was the latter part of October, 1957? A. That is right..”
On cross-examination he testified:
“Q. You don’t know what she talked about that she owed? A. No, but she did say, ‘Mr. Oliver, I intend to pay you every cent’, and then, ‘I am the one that hired you to start with’. Q. Whether she was talking about this claim or another claim the only thing you know is what Mr. Oliver1 told you. A. Only what I hear. Q. But what she was. talking about, you don’t know? A. No; not exactly. I am just telling you what I heard.”
Claimant testified: “I am a practicing lawyer in the city of Des Moines and have been for approximately 24 years; * * *. During the time * * * I have appeared in the United States District Court for the Southern District of Iowa and appeared in the United States Circuit Court of Appeals, 8th Circuit at St. Louis, and have also performed other legal services by making two trips to Chicago1, as referred to in my claim now on file.”
Exhibits A and B were received in evidence, • Exhibit A being the court's opinion in the case of Alonzo W. Brooks, appellant, v. Chicago, Bock Island & Pacific Bailroad Company, appellee, in the United States Circuit Court of Appeals for the 8th Circuit, and Exhibit B being a document connected with the appeal from a decision of the manager of personnel of said railroad.
Claimant, answering said exeeptioxis, dexiied the material allegations therein and alleged his services were rexxdered to both decedent and her husband; that he was employed by Rosie Brooks; that his services wex*e rendered under a specific contract with her and that such contract was not subject to attack for xxnx-easonableness.
The claim, together with the objections thereto-, came on for hearing before the court oxx June 20, 1958, and the- court exite-x-ed judgment denying it.
I. The errors assigned are (1) that the court erred in setting- aside the order of May 29, 1958, allowing the claim and (2) in failing to- allow it. We hold the trial co-urt committed no error in either respect. Rule- 219, R. C. P., provides, “Every final adjudication of any of the rights of the parties ixi an aetioix is a judgment.” The order was not a final adjudication as it contained an express provision granting the administrator “fifteen days time for review by filing proper objections and
II. This appeal is not triable de novo but on errors assigned. Tbe findings of fact by tbe trial court are conclusive upon us if they have proper support in the record. We find they have such support. It was for the trial court to determine the credibility of the witnesses and the weight of the evidence. Roth v. Headlee, 238 Iowa 1340, 29 N.W.2d 923; In re Estate of Hoenig, 230 Iowa 718, 298 N.W. 887.
III. The court found “From claimant’s Exhibits A and B it would appear that the services rendered by the claimant to Alonzo W. Brooks occurred sometime between September 21, 1946, the date the said Brooks was discharged from his employment with the Chicago, Rock Island and Pacific Railroad Company, and November 10, 1949, being the date that the appeal of said Brooks was decided in the United States Court of Appeals for the 8th Circuit,” and that “There was no testimony as to agreement between the claimant and Rosie Brooks as to the consideration to be paid for the services”, and held the claimant had failed to prove by a preponderance of the evidence the essential allegations of his claim and that it was barred by the statute of limitations.
IV. It is undisputed that claimant rendered the services described in his claim but it is disputed that he rendered them for Rosie Brooks. They were rendered in connection with a claim of decedent’s husband against his former railroad employer. Decedent was not a party to the claim against the railroad company. Claimant alleged and offered evidence to the effect it was Rosie Brooks who hired him “in the first place.” If that is true it was by verbal agreement entered into in 1947, 1948 or 1949 when the legal services were being rendered. There was some evidence of payments and of an oral promise to pay. Never did Rosie Brooks make an admission in writing that the debt was unpaid or make in writing “a like new promise to pay the same.” There was evidence of a partial payment in 1957. Partial payment or an oral promise to pay a debt will not toll
Section 614.1 provides: “Actions may he brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: * * * 5. Unwritten contracts — injuries to property — fraud— other actions. Those founded on unwritten contracts,” etc.
Section 614.11 provides: “Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to- pay the same.”
“The legislature has definitely pointed out the method that is available to raise the bar of the statute of limitations. It expressly requires a written promise or a written acknowledgment.” In re Estate of Sleezer, supra, at page 59 of 209 Iowa. See also Mortenson v. Knudson, 189 Iowa 379, 176 N.W. 892.— Affirmed.