McElhenney v. Hendricks , 82 Iowa 657 ( 1891 )

Kothrock, J.

The plaintiff is administrator of the estate of Tillie J. McElhenney, deceased. The defendant is a brother of the deceased. The action is founded, upon three promissory notes executed by the defendant, and payable to the order of Tillie J. Hendricks. This was the maiden name of the deceased. After the notes were executed, she was married to the plaintiff herein. One of the notes was for the sum of two hundred dollars, dated March 31, 1884, and due on sight, with ten-per-cent. interest. Another note was for the sum of ninety dollars, dated December 4, 1885, and payable on or before the twentieth day of June; 1886, with ten-per-cent. interest., The last note was for five hundred dollars, dated December 5, 1885, and payable on or before December 20, 1887, with interest at eight per cent, per annum. The interest on all the notes was payable annually, and, if the interest was not paid when due, it was to draw the same rate of interest as the principal. There were credits indorsed on the five-hundred-dollar note, amounting in the aggregate to three hundred and ten dollars, and interest on the note to January 6, 1887. The defendant pleaded that, in addition to these amounts, he had paid the said notes in full. These alleged payments consisted of various sums claimed to have been paid for the said Tillie J. Hendricks to other persons, and for money paid to her by certain checks upon a bank. It is claimed by the plaintiff that the evidence of payment did not authorize the verdict, and that the undisputed facts show that there should have been a verdict for the plaintiff for at least two hundred and sixty-two dollars. It is to be conceded that the evidence of payment is not clear and satisfactory, and yet we are not prepared to disturb the verdict on this ground. Some of the items claimed as payments were not established. The action is by an administrator, and, under section 3639 of the Code, the defendant was not a competent witness to personal transactions between him and the deceased. But we attach much importance to the testimony of one O. B. Peris, touching a conversa- ’ tion which he had with the deceased in the fall of the year 1886, in which she stated, in substance, that she. held some notes on the defendant which were paid. We' cannot take the time, nor is it necessary, to set out the j evidence in detail, and enter upon a discussion as to its' weight. It is enough to say that, upon a careful examination of the record, we are content to allow the verdict: to stand. ¡

II. All of the bank checks claimed as payments; were made' payable to Tillie J. Hendricks or bearer. The defendant was a witness in his own behalf, and he was asked this question: “State whether or not you ever delivered any of the checks referred to by witnesses Blum and Werting to any individual or individuals other and not including and not referring in any way to your deceased sister, Tillie J. Hendricks, and, if so, state tbe name of said other person or persons.” Tbe question was objected to by tbe plaintiff, because it tended to prove personal transactions between tbe defendant and tbe deceased, and was incompetent and inadmissible, under section 3639 of tbe Code. The objection was overruled. It is claimed that this ruling was erroneous. The answer to this question was: “I did not deliver them to any other person.” We think tbe ruling of tbe court was correct. The statute does not exclude the. proof of facts from which by inference other facts may be found. The question and answer expressly exclude any personal transaction between the plaintiff and the deceased. It was no more than a statement that the drawing of the checks was in the usual .course of business, and that they were not delivered to another than the payee.

We discover no ground for reversing the judgment. Affirmed.