Brooks v. Lawson

[11]

VAN DYKE, J.

Action upon a rejected claim against the estate of Rachael Jeans, deceased. The claim as presented to the defendant administrator was disallowed, a copy of which is set forth in the complaint as the basis of the action, and is as follows : “In March, 1895, in the state of Iowa, where claimant then resided, deceased residing with him, the deceased promised the claimant, that if he would sell out his property and come with her to California, and bring with him his wife and family, claimant’s wife being a granddaughter of deceased, that deceased would give claimant $100, which she did, toward the payment of his expenses from Iowa to California, and would pay him $1,000 on their arrival to California, as soon as she could sell certain lands which she then owned, and which were situated in California, which said lands were worth upwards of $1,000; that deceased arrived in California in March, 1895, whereupon deceased gave claimant the right to sell' said land and pay himself said $1,000; but claimant was not able to sell said lands until the death of the deceased, she dying the legal owner of said lands, and the same now being in the hands of the executor for the payment of the debt; that in pursuance of said agreement, claimant did sell his said property in Iowa and come to California with his family, with deceased, and in all respects fully carried out his part of said contract.” The court found that the evidence did not sustain the promise or agreement set out as the basis of the plaintiff’s claim. The appeal is from the judgment in favor of the defendant and from an order denying plaintiff’s motion for a new trial. The main contention of the appellant is, that the findings are not supported by the evidence.

The testimony, excepting the wife of the plaintiff, is by deposition. Her testimony, in substance, is: “Mrs. Jeans told plaintiff that if he would sell his property for what he could get and come with her to California, she would give him $100 toward defraying his expenses, and after her arrival in California, would pay him a thousand dollars as soon as she could sell her lands in California. Plaintiff sold his property in Iowa for less than its value, and with his wife [the witness] and children came with deceased to this state, she paying $100 towards the expenses. After the arrival, deceased gave witness a small house and lot near her residence. She never effected a sale of her lands prior to her death. Witness and