Schieber v. Schieber ( 1934 )

A rehearing was ordered on the petition of appellant stating that the court erroneously assumes that there is evidence in the record that plaintiff paid $600.00 under the new contract, exhibit 7, in addition to the $500.00 and bases this assumption solely on a receipt dated November 28, 1928.

On page 17 of the transcript the defendant on cross examination testified as follows:

"Q. Now the only money you paid your father under this Exhibit No. 7 is this check, Exhibit No. 6? A. No.

"Q. You paid him some more? A. Yes.

"Q. By a check? A. Yes.

"Q. Where is that check? A. It should be in the lawyer's hands. If not, I have it in my pocket.

. . . . . . . .

"Q. . . . Did you make any payments other than this check, Plaintiff's Exhibit No. 7? A. Yes, I did.

"Q. You made that payment after the date of July 6, 1928? A. Yes, sir.

"Q. Produce the check. A. I believe I must have given that to you, Mr. Thress.

"Q. Are you able to find any one check among the checks you are examining now? A. I should have two checks here, no only one, it was drawn and payable to him after that contract was entered into.

"Mr. Thress: Yes, I have some checks here.

"A. Here is a check for $100.00 and he received that and a receipt, dated November 28th, 1928, for $600.00.

. . .

"Q. I show you Defendant's Exhibit ``A' and ask you if that is the receipt you mentioned? A. Yes.

"Q. Now is that not a receipt for money you paid him under the old contract on his share of the crop? A. It is not."

The contract is dated the 6th of July, 1928. There is one check for $100.00, dated July 11, 1928, then there is the receipt dated November 28, 1928 signed by the defendant Nick Schieber, which says on its face "$600 and no/100 for the year 1928 as full payment." That was the amount due on the contract on December 1st, 1928, and it says specifically that it is in full payment for that year. In reference to the receipt appellant asked the defendant "Now is that not a receipt for money you paid him under the old contract on his share of the crop?" He answered emphatically "It is not." He had already testified that they were payments on the contract, exhibit 7. This testimony is not very material, for the decision is based on the letters which the defendant wrote to the plaintiff and which letters clearly indicate that the defendant offered to release the plaintiff from all indebtedness if he would send him the $500.00 so that he could make the payment on his permanent home in the institution in Portland.

We adhere to our former decision.

BURR, Ch. J., and NUESSLE, MOELLRING and CHRISTIANSON, JJ., concur.