Wilcox v. Jackson

57 Iowa 278 | Iowa | 1881

Day, J.

The evidence is not contained in the abstract and hence the finding of the court must be regarded as embodying the facts of the case. The court submitted a finding of facts as follows:

“1. In the fall of 1873 Jerre Wilcox, now deceased, and Henry Saunders were partners in buyiug and selling cattle and live stock. Said Wllcox furnished all the purchase-money, and each sharing equally in the profits and losses. That about the last of September or first of October, 1873, these parties purchased of the defendant, N. P. Jackson, fourteen steers, averaging 1,200 pounds in weight, at four cents per pound, and four cows averaging 950 pounds, at two and one-half cents per pound, amounting in all to $767, on which $20 was paid, leaving due $747.

2. That at the time this purchase was made said Wilcox was present making the purchase, or at least assisting in making the purchase, and said purchase was made in his name, and said Jackson understood at the time that said Wilcox was to be paymaster to him for said cattle, and it was verbally agreed between these two at the time, that, said Wilcox was to apply a sufficient part or portion of the purchase-price of said cattle to the extinguishment of a certain school-fund note the principal of which was $500, given by said Jackson as principal and said Wilcox as surety, and that said Wilcox then verbally agreed to assume and pay off said note, and I find that as between these parties, Wilcox and Jackson, said school fund debt became thereafter the debt of Wilcox.

“ 3. I find that said school-fund note became due and pavable December 10th, 1874, and I further find that on the 31st day of December, 1873, interest was paid on said note to the amount of $40. The evidence does not show by whom this interest was paid, but inasmuch as it was the duty of Wilcox to pay it, and no longer Jackson’s duty (as between the parties), I deem it fair to presume that Wilcox did his duty in this resjiect at least. (1 Greenleaf on Ev., Sec 40), and I therefore find that Wilcox made this payment.

“The evidence also shows that there were other installments of interest paid on this note, but as they were paid after the note became due Wilcox should not be credited with the payment of any further amount except the interest that would accrue from December 31st, 1872, to the time the note became due; to-wit, December 19th, 1874, as it was his duty to pay off the note when it became due and stop the accumulation of interest. I further state that the evidence does not show by whom any of these installments of interest were paid.

“4. I also find that in the year 1874, being after the said cattle were purchased, that said Jackson executed to said Wilcox his promissory note for $125, on which said Jackson was subsequently sued and judgment rendered thereon against him, and this raises a presumption that the balance of the purchase-price of the cattle that had not previously been adjusted was then settled and paid (Grimmell v. Warner, 21 Iowa 12), and I find that Jackson then received pay for said cattle except the amount that it would take to pay off said school-fund note, which had previously been assumed by said Wilcox.

“ 5. I find that said Wilcox never paid any of the principal of said school-fund debt, but that his estate still owes said Jackson the principal of said note, being $500 with six per cent interest from the date of the jmrchase of said cattle; to-wit, October 1, 1873.

“ 6. 1 find that the evidence sustained the equitable circumstances alleged by the defendant in the amendments to his counter-claim and relied on by him to remove the bar of the statute, which I find sufficient for that purpose.

“ The court also finds that the allegations of plaintiff’s reply as to the time of her appointment as administratrix and the time notice thereof was published are established by the evidence.”

1. estates of decedents: illiugclaims: statute ol limRations. I. It is claimed that the facts alleged in the amendments to the counter-claim, and found by the court to be established by the testimony do not constitute such equitable , 1 circumstances as will excuse the failure to prove ... 1 the claim within one year of the giving of notice of the taking out of letters of administration. In the last amendment to the counter-claim it is alleged amongst other things that the defendant informed his attorneys of the existence of his counter-claim at the September term, 1876, and that during all the time from said September term to the 27th of February, he relied upon the full belief that his claim had been filed at the September term, and that all things that the law requires in that respect had been done, and that said counter-claim was by accident placed with other papers in the office of the attorneys at the September term and there remained until February 27, 1877, when it was found, and it was first discovered that it- had not been sworn to and filed. Mistake and accident are favored grounds of equitable relief. If the counter-claim had been filed at the September term, 1876, and on account of continuance resulting from the .application of the plaintiff, or the press of business of the court, had not been proved until after the year expired, the client’s claim would not, under the former decisions of this.court, have been barred. We have now a case in which it was the intention to file the counter-claim more than six months before -the year elapsed, in which the defendant supposed it had been so filed, and in which the omission to filé resulted from accident or mistake. We think the circumstances alleged in the second amendment to the counter-claim are sufficient to remove tbe bar of the statute of limitations.

2.-: variiince : practico. II. The original counter-claim alleges that the defendant sold and delivered to Wilcox nineteen head of fatted cattle, for which Wilcox undertook and promised to pay the sum of eight hundred and sixty dollars.

The court found that Wilcox purchased of the defendant fourteen steers, averaging 1,200 pounds, at four cents per pound, and four cows averaging nine hundred and fifty pounds, at two and one half cents per pound, amounting in all to $767. It is claimed that the contract which the court has found is not the contract upon which the defendant claims, and that, therefore, the court erred in establishing a claim against the estate.

The defendant was not bound to prove the exact number and price as alleged in his counter-claim. It is essential only that the substance of the issue be proved. 1 Greenleaf on Evidence, Sec. 66: “In general the allegations of time, place, quantity, quality, and-value, when not descriptive of the identity of the subject of the action, will be found immaterial, and need not be proved strictly as alleged.” 1 Greenleaf, Sec. 61. Besides, so far as the record shows, this objection is raised for the first time in this court. No objection is shown to have been made to the proof when offered. It is not shown that there was any variance between the proof and allegation which was prejudicial to the plaintiff. If the objection had been made in the court below, the court might have ordered any immediate amendment without costs. See Code, § § 2686 and 2687. The objection not having been presented in the court below cannot avail here. The judgment is

Affirmed.