83 Neb. 232 | Neb. | 1909
The appellee, who was the plaintiff in the trial court, filed a claim against the estate of one John A. Close, late of Dodge county, consisting of several items, one of which was for $1,000, based on a certain agreement or written promise made to her by the deceased about a year before his death, which reads as- follows: “Arlington, July 15th, 1903. I do hereby promise to pay Mary G. Russell $1,000 —one thousand dollars' — or leave that sum to be paid to her at my death, for services rendered me by her as housekeeper and companion and nurse for the past four years, and until my death, besides her weekly wages, which I pay quarterly. Mr. John A. Close.” She alleged that -she had fully complied with all of the provisions of the agreement on her part; that she had remained in the home of
Three grounds are assigned for a reversal of the judgment: First, that the evidence does not sustain the verdict, in that it fails to show a delivery of the written promise; second, that the trial court erred in receiving in evidence the cross-examination of the witness Anna Godel; and, third, that the court erred in refusing to direct a verdict for the defendants. These assignments will be disposed of in the order in which they are presented.
The record before us discloses, however, that the district court was of opinion that delivery of the agreement was essential, and submitted the case to the jury on that theory under the belief that there was competent evidence tending to show an actual or, at least, a constructive delivery of it to the plaintiff. This ruling favored the defendants’ theory of the case, and furnishes them no grounds of complaint. The testimony on this point was, in substance, that on the 15th day of July, 1903, the plaintiff suggested to John A. Close that he was so badly afflicted, and that it was so much work to care for him and nurse him, that $2 a week was not a sufficient compensation. He assented to that statement, and thereupon dictated the instrument in question, which she wrote precisely as he gave it to her; that he signed it, and delivered it to her with the suggestion that she keep it in a desk which contained his will and some of her private papers. She assented to this suggestion, and placed the paper in the desk, where it was found and taken possession of by the executor. It appears that she carried the key to the desk, and, whenever the deceased wanted any papers taken out of that receptacle, she unlocked it and got them for him; that she also had some private papers of her own which she kept in the same desk, and that she gave the key to the executor to enable him to get the will. It therefore seems clear to us that the district court was right in the conclusion that there was sufficient evidence of a delivery to require the submission of that question to the jury.
In Niccolls v. Esterly, 16 Kan. 32, and Roberts v. Briscoe, 44 Ohio St. 596, it was held that by introducing a part of tbe evidence of tbe interested party tbe defendant opens tbe door to all of it. Again, this statute has been many times construed by this court in cases which are decisive of this question. It has been held that, where an administrator introduces in evidence a letter from tbe adverse party, giving a narrative of tbe transaction with a deceased person, upon which tbe action is based, tbe evidence of tbe adverse party as to tbe transaction recited in tbe letter upon bis own behalf is not incompetent under tbe provisions of this section. Cline v. Dexter, 72 Neb. 619. In Davis v. Neligh, 7 Neb. 84, it was said: “But where a witness has related a portion of what took place at a particular time or place, or a part of a particular transaction, be may be cross-examined as to matters showing the entire transaction". American Savings Bank v. Estate of Harrington, 34 Neb. 597, was an action on a note signed by a father and son, filed as a claim against tbe estate of tbe father. On tbe trial tbe son testified as a witness that bis father was merely a surety on tbe note, and that be was the principal; that tbe note bad been extended from time to time without tbe knowledge or assent of his father. He was then asked if it was not a part of tbe agreement between himself and bis father on one side, and tbe bank on tbe other, that tbe note was not to be paid in full when due, but was to be extended from time to time for about one year. Tbe evidence was excluded, and it was held by this court that it was competent and proper because, tbe estate having shown a part of tbe transaction, tbe plaintiff was entitled to show tbe whole of it. In Taylor v. Ainsworth, 49 Neb. 696, it was alleged by plaintiff, an executor of a person deceased, that tbe defendant bad received from tbe deceased during ber
Finding no error in the record, and it appearing (to quote a favorite expression of a former honored member of this court) “That substantial justice has been done,” the judgment of the district court is
Affirmed.