Stuart v. Pederson

¶1(after stating the facts as above).

¶21,2, 3 trator of his estate. We do' not so construe the com-The first error assigned relates to the order of the court overruling appellant’s demurrer. It is contended on behalf of appellant that the action is founded upon the contract entered into between appellant and A. L. Bennett, and that, as the consideration for that contract was certain financial aid and other services rendered appellant by A. L. Bennett in the development and invention of the firearm mentioned, the contract was therefore an asset of Bennett’s estate, and can only be enforced by a suit of an adminis-plaint. The agreement between appellant and Btemnett was pleaded as a matter of inducement only. It tended to explain the circumstances leading upi to and surrounding the making of the contract upon which the action is in fact based. This contract is to be found in the correspondence carried on between appellant and1 respondent, and to which we have referred in the foregoing statement of facts. The consider*317ation. for tbe contract was the assignment by respondent of all her right, title, and interest in the gun mentioned and patented improvements thereon to the Remington Arms Company. This assignment was made by respondent at the special instance and' request of appellant and in pursuance of the promises made by him that he would pay her oneffourth of the $6000 down payment to be made on the gun by the Remington Arms Company and one-fourth of all royalties received! from sales made by the Remington Arms Company of the gun.

¶3It is alleged in the complaint, and it is admitted, that “A. X. Rennett died in the State of Colorado intestate and without issue, leaving surviving him as his only heir at law the plaintiff, who was and is his widow. It is further alleged that at the time of his death the said A. L. Bennett was a ■citizen and resident. ... of Colorado, the laws of which .state at the time of his death provided in substance that all property, real and personal, of any person dying intestate, shall, at his death, descend to his surviving widow if ha have no issue.” TJnder these allegations of the complaint which, for the purposes of the demurrer, must be taken to be true, the respondent had an assignable interest in the es-tafe of her deceased husband1, and this interest included any right, title, or interest that A. L. Bennett may have had! in the gun and patents mentioned at the time of his death. (21 A. & E. Ency. L. (2 Ed.) 1029; 4 Oye. 15; Burrill on Assignments, p. 110.) We are therefore clearly of the opinion that the assignment was a good and sufficient consideration for the contract upon which this action is based,'' and that the court did not err in overruling the demurrer.

¶4Appellant also assigns as error the admission in evidence of the statute of Colorado in reference to the law of succession, which so far as material here, provides:

¶54 “Whenever any person having title to . .■ . property having the nature or legal character of real éstate, or personal estate, undisposed of or not otherwise limited by marriage settlement shall die intestate as to such estate, it shall descend and be distributed ... in the *318following course and manner namely: ... if such intestate leave a husband or wife, and no child or descendants of any child, then the whole of the estate of such' intestate, real and personal, shall descend to and vest in such surviving husband or wife as his or her absolute estate, subject to the payment of debts,” etc. (Mills’ Ann. St., sec. 1524.) The statute thus offered and' admitted in evidence-was in a book purporting to be “Mills’ Annotated Cbdtei of Colorado-.” The fourth printed page of that book contains, among other things, the following:

“An act to malee ‘Mills’ Annotated Statutes of the State of Colorado’ prima facie evidence of the originals in all courts and proceedings in this state. . . .

“Be it enacted by the General Assembly of the state of Colorado:

“Section 1. From and after the passage of this act, the General Statutes of the State of Colorado published in the year A. D'. eighteen hundred and ninety-one entitled ‘Mills’ Annotated Statutes of the State of Colorado,’ edited and annotated by J. Warner Mills, Esq., shall be received in all courts and proceedings, and by all officers of this state as prima facie evidence of the original.”

¶6The book was properly identified, and' the evidence showed that was what it purported to be, namely, “Mills’ Annotated Statutes of Colorado.” The contention made, however, is that the proof was insufficient to show that the book was published by authority of the State of Colorado1, and that therefore it was improperly admitted in evidence. C'omp1. Laws TJtah, 1907, sec. 3379, provides:

¶7“Books purporting to be printed or published under the authority of another state or territory, or foreign, country, and! to contain the statutes, Code or other written law of said state, territory, or country, or proved to be commonly admitted m the tribunals of such state, territory, or country as evidence of the written law thereof, are admissible in this state as evidence of such law.” (Italics ours.)

¶8Appellant urges that the’ evidence failed to show that the book was published by authority of the State of *319Colorado, and that, therefore, it was improperly admitted in evidence. We think th^ excerpts taken from the fourth page of the book show that it purported to be published under the authority of the State of Colorado. Independent, however, of what the book itself shows -regarding the authority under which it purports to be published, there is evidence in the record which we think fully meets the requirements of section 3379, supra. One Volney C. Gunnel, an attorney at law, was called as a witness, and testified that he is, and for twenty-one years has been, practicing law in this state; that prior to coming to TJtah he practiced law in the Supreme and other courts of record in the State of Colorado. Neplying to the question, “And you have estates pending and in the course of administration in the State of Colorado at this time?” he answered: “Yes, sir; more or less interested all the time.” The witness further testified: “I am doing a good deal of business relative to Colorado matters all the time.” The following was then propounded: “State what knowledge you have -as to whether 'Mills’ Annotated Statutes of Colorado’ are commonly admitted in the tribunals of that state as evidence of the written.law thereof.” The witness answered, “The personal knowledge I have I suppose. I notice that the lawyers use the book there. I have not been in court myself and used it, but I know it is in use in the courts there.” The witness- further testified, “I only know that from the fact that the work is cited by the Supreme Court of that state. . . ' . It seems to be in general use in the courts of that state, and is recognized by the Supreme Court of that state.” We think the only fair inference of which this evidence is susceptible is that “Mills’ Annotated Statutes of the State of Colorado” is “commonly admitted in the tribunals” of that state “as evidence of the written law thereof.” This assignment of error is therefore overruled.

¶9In his assignments of error appellant assails the 'decision rendered by the court on the mierits'on the ground that the decision is not supported by evidence. These assignments’ are without merit. We therefore deem it unnecessary to review *320or discuss them. We remark, however, that a decision contrary to or materially different from the one rendered by the court would not in the face of the undisputed evidence in this case be permissible-.

¶10The judgment is affirmed, with costs to respondent.