Aylward v. Wells

HANSON, J. pro tem. Only two questions are presented for decision, one as to the sufficiency of the evidence to sustain the judgment, and the other as to certain rulings on evidence.

After the rejection of her three separate claims filed against the estate of George D. Wells, deceased, plaintiff instituted this action setting forth three counts in her complaint. The first count avers that plaintiff supplied the decedent Dr. [180]Wells with $2,000 on August 15,1946, under an oral agreement that he would purchase two specified lots and hold title thereto in his and her behalf as equal beneficiaries. The count averred the due presentation to and rejection by the administratrix of Wells of this claim.

The second count likewise predicated on one of the claims filed by her avers a loan by plaintiff of $7,000, in installments, beginning with November 14, 1946, and ending February 6, 1948, the last installment being in the sum of $2,150. (The decedent Wells died on February 9, 1948.) This count likewise avers the due presentation to and rejection by the administratrix of this claim. Parenthetically it should here be stated that the claim, as filed, asserted plaintiff “invested” the moneys “in the business of George D. Wells, deceased, known as George D. Wells Emergency Hospital,” whereas the count predicated upon this claim sought a recovery on the theory of a loan to Dr. Wells and not as an “investment” in his business.

The third count avers that in 1927 the plaintiff and Dr. Wells entered into an oral contract to devote their time and effort in developing the medical business of Dr. Wells and that whatever property they acquired should be owned and shared equally although title thereto was to stand in decedent’s name; that the parties operated accordingly for 20 years up to May, 1947, when plaintiff left her employ temporarily but was induced to return upon the representation that the doctor had drawn a will and executed other written documents by which it would be shown plaintiff was a half-owner of the medical business and of all his other property; and moreover, if he predeceased her, she would be invested with his interest in the business and of all his property. Upon such representation plaintiff avers she returned and continued to work in the business until decedent’s death less than a year later.

The testimony of the plaintiff was substantially in accord with the allegations of her complaint. The only corroboration for any of her testimony may now briefly be stated. Her witness Contessoto testified that decedent, on an occasion when he made a loan to him, remarked that he and the plaintiff had jointly bought the two lots here involved. The witness Niemann’s testimony was that the decedent told hfm that he and the plaintiff were purchasing property together; that at the time he saw ‘a pile ’ ’ of money on the doctor’s desk and the latter mentioned it was to be used in buying two lots. Witness Sherman testified that she was in the office when the