Bixley v. Wormly

44 Iowa 347

• Court: Supreme Court of Iowa
• Decided: October 18, 1876
• Status: Published

Opinion

Adams, J.

i evidence • witnesí: aidministrator. I. As to the money alleged to have been loaned to plaintiff by Breese, one F. C. Bixley, plaintiff’s son, was flowed to testify, against the defendants’ objec^ou’ ^at Breese told him that the money was repaid. The defendants claimed that the evidence showed that the witness was obligated to pay the money, and should not have been allowed to testify as to conversations with Breese.

The money was borrowed to defray the expenses of a certain company to Montana, composed of the plaintiff, the witness, F. C. Bixley, and others. The witness said: “ My interest in this $111.00 was that I had been letting father have money from my earnings for settling it; I was one of the company going to the mountains, and was interested in the payment of the debt to Breese; I went out for father; was a minor; felt it my duty to help pay his indebtedness; after returning I earned money and paid it to father; never told father, particularly, to apply my earnings on this indebtedness; I considered it my duty to pay one-third of it.”

The defendants aver that the money was loaned to plaintiff. They do not aver that F. C. Bixley was jointly liable with him, nor do we think that the evidence shows that he was. F. C. Bixley was interested in helping his father pay the debt, not because it was his own debt, but his father’s debt. If, indeed, F. O. Bixley became indebted by reason of his sharing in the money, wre think it was to his father, who alone had borrowed it of Breese. As evidence of this, it appears that all payments (if they can be called such) made by F. C. Bixley were made to his father. We do not think that the testimony could properly have been excluded upon the ground that the witness was interested. Another objection, however, is now made to it; the plaintiff did not plead payment. The objection would have been good if it had been made at the proper time; but it is made for the first time in the appellate court, and we cannot reverse the case upon that ground.

II. The appellants contend that the evidence does not support the findings of the referee upon the question as to payment for the lots, but we are of the opinion that it does. There is some conflict of evidence, and it does not leave our minds entirely free from doubt, but the case cannot be tried here de novo, as appellant claims, and there being some evidence that payment was made, as claimed by plaintiff, the decree of the Circuit Court must be

Affirmed.