139 P.2d 235 | Mont. | 1943
This appeal involves a controversy between Harry Sharp and the widow of his deceased brother, Jay Sharp. Harry Sharp claims joint ownership with his deceased brother's estate in certain real and personal property. As a basis for his claim he alleges an oral agreement between himself and his brother in which the plaintiff, Harry Sharp, agreed to and did furnish part of the money with which the property was purchased. The alleged agreement also contained an agreement whereby the title of the property would be taken in the name of the deceased's wife and that she would hold the property for the two brothers. The plaintiff seeks by this action to have a resulting trust declared in real property.
A jury was called and answered interrogatories to the effect that there was an agreement for the joint purchase and ownership of the property and that Harry Sharp furnished one-half the purchase price. The court accepted the jury's view of the facts and rendered judgment accordingly. The defendant, the widow of Jay Sharp, has appealed.
The first assignment of error is that the court erred in[1, 2] allowing plaintiff to testify as to the oral declarations of the deceased contrary to the provisions of section 10535, Revised Codes, subsection 3. That section reads: "The following persons cannot be witnesses: * * * 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, as to the facts of direct transactions or oral communications between the proposed witness and the deceased, excepting when the executor or administrator first introduces evidence thereof, or when it appears to the court that, without the testimony of the witness, injustice will be done."
It is the argument of the appellant that no specific foundation was laid to move the discretion of the court to permit this testimony under the last provision of subdivision 3, permitting the *39
introduction of such testimony to avoid injustice. In Pincus v.Davis,
In the latter case the court quotes with approval from the special concurring opinion in Wunderlich v. Holt, supra, and says: "A trial court should not admit the testimony of a witness, prima facie incompetent, until sufficient other testimony is admitted to warrant the court in exercising its discretion in favor of the questionable testimony. (Cobb v. Follansbee,
As can be seen from the above quotations, this court has never laid down a well defined line of demarcation between a sufficient and insufficient foundation. The application of the statute must vary with the circumstances presented to the district court. Mr. Chief Justice Callaway, in Marcellus v. Wright,
Since the trial judge has had the opportunity of observing the demeanor of the witnesses as they testified, an opportunity which we do not have, we must be equally careful in our review of the trial court's decision and reverse it only when it is clear that he has made an error. It is our duty to examine the record for testimony upon which it is reasonable to conclude that there is credibility in plaintiff's claim.
It is held in Rowe v. Eggum, supra, a prima facie case need not be made out. In that case the court said: "The statute makes it incumbent upon the court, in the exercise of its discretion, to determine in each case whether the testimony is necessary to enable the plaintiff to make out a prima faciecase."
In this case it is established that the plaintiff and deceased worked together from the time of the purchase in 1927 on the premises and that after Jay Sharp's death the plaintiff remained in possession of the property until March, 1940, being approximately one and one-half years. In addition there was the testimony of a disinterested witness, Bernard Thomas. He testified that the deceased made the following statement to him: "The horses all belong to Harry [plaintiff], — I don't have anything to do with the horses. The horses are all his, but the rest of this stuff there we have got together, but I have nothing to do with any of the horses."
Although Bernard Thomas took this statement as meaning that the two owned the land together, yet it is somewhat vague in that the word "stuff" is ordinarily used in connection with inanimate personal property. However, there is an indication in this statement that there was some relationship of joint undertaking between the two.
The defendant relies on the case of Langston v. Currie,
The next contention of error is that even if the testimony as[3] to the deceased's declarations were admissible yet that evidence did not support a finding of trust, since it does not show that the money paid by the plaintiff was actually used in the purchase of the property. Plaintiff testified to turning over to deceased $1,150 at the time the bid for the property was made and *42 other sums from time to time thereafter. We cannot agree with defendant's contention. The following testimony, given by the plaintiff, is sufficient in that respect:
"Q. You don't know of your own knowledge whether or not any of this money — $1,150.00 was used for the purchase of this land, do you? A. My brother's word for it.
"Q. Do you know whether he did actually put the money into this land? A. Well, he said he did; he didn't seem to have any other.
"Q. You don't know this, do you, of your own knowledge? A. I never went there with him. * * *
"Q. As a matter of fact, as far as you know, none of this $1150.00 went into the purchase price of this land? A. All I know, they told me.
"Q. Who told you? A. Mrs. Sharp said Jay put money in; Jay said he put the money in.
"Q. Put this identical $1,150.00 in? A. He didn't say the `identical.'
"Q. But put in — put your money in or did she just say, Jay put money in? A. No, she said, `We used the money.'
"Q. She didn't say what for? A. Yes."
In view of the position we take on the above two assignments of error, we find no purpose in discussing the remaining assignments that the court erred in denying appellant's motion for a nonsuit, and that the evidence is insufficient to support the verdict.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur. *43