Evans v. De Lay

Belcher, C. C. This action was brought to recover moneys alleged to have been loaned at different times by plaintiff to defendants, several of the loans being evidenced by due bills made by defendants to Mrs. A. B. Evans. The complaint states that the plaintiff was at the time of the loans the wife of Allan B. Evans, and that the money was her separate property. The answer denies that plaintiff was the wife of Aban B. Evans, or that she loaned to defendants any of the money sued for, [104]or that it was her separate property; and, by way of defense, alleges that defendants made a verbal agreement with Evans to sell him a half-interest in their business, and that the moneys alleged to have been loaned were partial payments made by him on his purchase. Plaintiff had judgment, a motion for a new trial was denied, and defendants appeal.

It is urged on behalf of appellants that the court found only inferentially, and not directly, that plaintiff was the wife of Evans, and that therefore the judgment should be reversed. The complaint alleged that defendants executed and delivered to plaintiff each of the due bills sued upon, “ describing her therein by her married name of Mrs. A. B. Evans.” The answer denied the delivery, but not the execution, of the papers. The court found that the due bills were executed and delivered by defendants to plaintiff, and that she was the person described therein as “Mrs. A. B. Evans.” The court further found that the moneys loaned were all the separate property of plaintiff, “acquired by her during coverture .... by gift from her husband, Allan B. Evans.” These findings were amply sustained by the evidence, and in view of them it was entirely immaterial whether plaintiff was- in fact the wife of Evans or not. The moneys being plaintiff’s separate property, she had a right to loan them to defendants, and to sue for and recover them; and it was a matter of no concern to them, whether she was married or unmarried, or whether she was the lawful wife of Evans or some other man. The contention of appellants cannot, therefore, be sustained; the rule being that findings upon immaterial issues are unnecessary, and that judgments will never be reversed for the want of them.

It is next claimed that the court erred in sustaining objections to offered testimony. The plaintiff was called as a witness • in her own behalf, and, on cross-examination, testified that she was married to Evans on the 27th [105]