1 Plaintiff claims that the deceased, who was his father, on or about September 18, 1885, agreed, to give him a farm in Jones county, which the deceased then owned, as his portion of the father’s estate, if he (plaintiff) would remain upon and cultivate it, pay taxes and interest on a $3,000 mortgage, which deceased then contemplated placing on the land, and after the death of the father pay certain heirs the sum of $900; that he entered into the possession of the farm under this agreement, and has ever since been in the possession thereof as owner; that he has paid the taxes on the land, improved it, paid interest on the mortgage which was thereafter executed, and devoted his entire time to the management and control of the premises, using all of the income, except a small •amount of clothing and board, in the payment of taxes, interest, and improvements as aforesaid; that, notwithstanding he performed all of his part of the agreement, his father failed and neglected to deed him the farm, or to will the same to him, that he might have title thereto- as agreed. In the first count of the claim plaintiff sought to recover 'compensation for labor performed for his father, at his instance and request, from the year 1884 down to the time of his death, April 8, 1899. This count of the petition or claim was not submitted to the jury, the trial court holding, in effect, that there was not sufficient evidence to support it. We have stated it to the end that what follows may be better understood. The administrator denied both the express and the implied contract pleaded by plaintiff, and further • pleaded the counterclaim mentioned in the initial state: *17ment of tbe ease, in wbicb be asserted tbat plaintiff took .possession of tbe farm under an agreement with bis father, whereby be (plaintiff) was to pay interest on the mortgage and taxes for tbe use of' tbe farm, wbicb be neglected to do, , and tbat there was due from him on this agreement tbe sum .of $600 at tbe time of tbe father’s death. Tbe case comes to us on assignments of error presenting tbe correctness of certain rulings on tbe admission and rejection of evidence, of tbe instructions given and refused, and of tbe ruling on tbe motion for a new trial.
*18 2
3 *17Addressing ourselves to these rulings, we find tbat according to tbe undisputed evidence M. H.' Hutton, the father, lived on tbe Jones county land until about tbe time of the death of bis first wife, in tbe year 1885, when be moved to tbe state of Nebraska, leaving plaintiff, bis son, and daughter, Laura Gee, and her husband, L. L. Gee, upon tbe land. Tbe father married a second time after bis- removal to Nebraska, and resided in tbat state until bis death. He died intestate, leaving his second wife, a widow, and .plaintiff, Martha Clark, and Philander Hutton, sons and daughters, and Bessie Gee and two children of Caroline Hutton Lapbam, grand-children, as bis only heirs at law. .Prom 1885 to 1888 plaintiff and L. L. Gee lived upon and cultivated tbe Iowa farm, and bad tbe proceeds thereof, less the taxes, wbicb they paid. In tbe latter year Gee and wife left tbe farm, but plaintiff continued to use and occupy tbe same until tbe father’s death. After moving to Nebraska, -the elder Hutton made a mortgage of $8,000 on tbe Iowa •farm, wbicb bore 8 per cent interest. Plaintiff, has paid .some of tbe interest on tbat loan, but not all, as we understand it. He also made improvements on the premises. There is no doubt about plaintiff having- been in tbe possession of tbe farm during tbe years mentioned,- and tbe .real .question in tbe case is as to tbe nature of. tbat possession. On tbe one band, it is insisted that plaintiff was to- have the farm on conditions claimed, and on tbe other it 'is contended *18that he was simply to have the use of it. In response to pertinent questions plaintiff was permitted to testify, over defendant’s objections, “that he had been in possession of the premises from the time his father left the state in 1885, excepting the two first years that Mr. 'Gee was with him on the place; that there was a mortgage put on the place, executed' to one M. M. Benedict, in 1888, and that he paid interest on said mortgage; that he paid all the interest that has been paid on the Benedict mortgage; that every dollar I have had from the proceeds of the place, I have had, excepting my own keeping, has went to pay interest, and has been spent on the place; that he had paid interest on the Benedict mortgage at a bank to one J. B. Smith, in whose care the mortgage was left; that he had to keep up the fences, and pretty near everything a fellow had to do on a farm; that he only expended about $15 or $20 per year for clothes, and that his board and a little tobacco was all he ever got from the place.” The objections were to the competency of the witness under section 4604 of the Code. Doubtless, this evidence was inadmissible under the first count of the petition, which sought to recover compensation for labor performed. But, in view of the conceded facts, we think it was admissible under the second count, or, if not, than no prejudice resulted. The payment of the interest on the $3,000' mortgage, which was made to Benedict, was not a personal transaction with the deceased. True, the original mortgagee, M.'M. Benedict was dead, and the mortgage is now owned by B.. M. Benedict, but the action is not against Benedict, his heirs, representatives, or assigns; hence the statute does not apply to transactions with M. M. Benedict. Clark v. Ross, 96 Iowa, 402. Taking possession of the farm and making improvements thereon was not a personal transaction with the deceased. Dysart v. Furrow, 90 Iowa, 59; Denning v. Butcher, 91 Iowa, 425; Mclhenney v. Hendricks, 82 Iowa, 657; Walkley v. Clarke 107 Iowa, 454. Hnder the rule announced in Ballinger v. Connable, 100 Iowa, 121, the testimony was perhaps inad*19missible under tbe first count, but not under tbe second. Tbe matters referred to witb reference to tbe possession and occupancy of tbe farm related to facts ascertainable from observation alone, and were in no sense transactions witb Hutton, tbe deceased. . '•
4
5
*20 6
7 *19One Sinclair was a witness for plaintiff, and testified to various conversations bad witb deceased prior to bis death, regarding tbe Iowa farm. Tbe abstract contains tbis record: “I asked him if be was going to sell tbe farm. ‘No, sir,’ be said: ‘I bave bargained tbe farm to Wesley, and I bave to borrow $3,000.00 from Mr. Benedict, and I-have to put it in lands in Nebraska, which I consider my share. I want Wesley to pay that mortgage, and pay $500.00 to Mate (who was bis sister), and $200.00 to each of tbe girls of Lapbams, and Laura, Mr. Gee’s wife, has bad her share.’ (Tbe administrator moves to strike out tbe latter part of tbe 'answer as immaterial. Tbe. motion overruled, and tbe administrator excepts.)” We do not bave the question propounded nor tbe answer given to that question, and bave no other means of knowing what is referred to than appears in tbe foregoing quotation. Manifestly, it is so indefinite that we cannot tell what is referred to, except by resort to tbe argument. Tbis is not sufficient. It must appear from tbe abstract that tbe ruling of tbe court was incorrect. Presumptively tbe ruling was correct, and, as a great deal of tbe latter part of tbe answer was material, no error appears. At any rate, it was a part of tbe one conversation bad by witness witb tbe deceased, . and it was all admissible as explaining what pre-' ceded. .Code, section 4615, last sentence. Tbe record dis-' closés tbe following witb reference to tbe examination of another of plaintiff’s witnesses: “Q. Do you remember of his saying anything about Mrs. Gee in that conversation? (Objected to by administrator as being immaterial. Objection overruled, and administrator excepts). A. Why, be said, when he signed that note witb her, — when be told her-be would sign it, remember, — that be would sign it, but that *20he hadn’t any money to pay it. That he would sign, it, and, if he had to pay it, it was her share. Q. That was a note executed by her father for the place she had bought ? A. Tes, sir. (The administrator moves to strike out that portion of the answer relating to Laura Gee and the signing of the note as being incompetent and immaterial. Objection overruled, and administrator excepts.)” The following also appears with reference to another witness: “Q. Was there anything further said about it? A. He claimed that his daughter, Mrs. Gee, had had her share. (Objected to by administrator as being immaterial, and the administrator moves the court to strike out the answer as immaterial.) By the Court: Was what you say he said last — was that said at the same time that he said the other? A. Tes, sir. Q. And a part of the same conversation you have been telling ? A. Tes, sir. (The above objection of the administrator was then overruled, and the administrator excepts.)” It will be noticed that, save in one instance, there was no ruling on the objections to the questions, but the matter was raised by motion to strike. The rule is well settled that a party cannot stand by and take the chances on •a witness’ answer being favorable, and then move to strike if it proves to be contrary to- his liking. In the one instance where objection was made and overruled and exception taken, the question called for what deceased said about Mrs. Gee in a conversation with reference to the disposition of. the Iowa farm and its proceeds. It was a part of the one ' conversation, and gave color to the whole,- and was therefore properly admitted. Greenleaf, Evidence, section 201; 1 Phillips, Evidence, (4th Ed.) 416; Dougherty v. Posegate, 3 Iowa, 88. That such declarations are admissible in evidence, see Jamison v. Jamison 113 Iowa, 720.
*218 *20Mrs. Brady was a witness- for the defendant, and, after-testifying that plaintiff told her he (plaintiff) had to pay faxes for the use of the fárm> the record discloses the following: “Q. He spoke about that being the agreement *21•with his father? (Objected to by plaintiff as being'incompetent. Objection sustained, and administrator excepts.). Q. Did he, in those conversations, state with whom he had made this agreement? (Objected to by plaintiff as assuming that he had made an agreement, and as leading, and incompetent. Objection sustained, and administrator excepts.,)” These rulings, if they stood alone, could hardly be sustained, but it appears that thereafter the following question was propounded, to wit: “Q. In these conver-> sations with you in regard to. how he had to pay for the use-of the farm, to whom did he allude as the owner of the farm? A. Why, his father, of course, as far as— (Objected to by plaintiff as being incompetent, irrelevant, and immaterial, and assuming that anything of that kind was done, and as being leading. Objection sustained, and the administrator excepts.) Q. In those conversations' did Wesley tell you who he had contracted with for the use of the farm.? A. Nothing particular, only the reference to the — ” Cross-examination: “I live now at Scotch Grove,about a mile and a half from Wesley Hutton’s. I had a conversation with him about three weeks ago-. He said he had gone out West to get his deed. That his father had signed the deed, and the stepmother wouldn’t sign, as near as I can remember. ■ That was the conversation as near as I can state it.” This, it seems to us, cured the error. In any event, the witness gave the whole conversation, and the first question propounded to her, which we have set out, would, under these circumstances, and especially in ■ view of her last answer, be a conclusion. The question might call for a fact or a conclusion of the witness, but her last answer seems to indicate that it would in this instance call for a conclusion. The error, however, if error it was, was without prejudice. Moreover, the ruling on the second question is not properly assigned as error.
*229 *21IT. M. Benedict, the holder of the mortgage, was a witness for defendant, and after testifying to certain'conversations with plaintiff, in which he (plaintiff) said he was talk*22ing of buying tbe farm, produced a letter purporting to be signed by hi. H. Hutton, deceased, written in December of tbe year 1896, and appearing to be in answer to one from tbe witness, reciting tbat be (M. H. Hutton) bad rented tbe farm to bis son; tbat bis son was to pay interest and taxes on tbe farm; and tbat be would write tbe son and bave bim attend to tbe matter of interest. Tbis letter was offered in evidence by tbe defendant, but rejected on objection of tbe plaintiff. Tbe ruling is challenged. Citation of authorities is scarcely necessary to demonstrate its correctness. But see 1 Green]eaf, Evidence, section 190; Benson, v. Lundy, 52 Iowa, 265; Jamison v. Jamison, supra. The author of tbe letter was not then in possession of tbe land, and tbe letter was no part of tbe res gestae. In re Perkins’ Estate, 109 Iowa, 216, relied on by appellant, is not in point. Tbis disposes of all questions. made of rulings on evidence.
10
*23 11
12
*24 14
13 *22II. Defendant asked an instruction to tbe effect tbat plaintiff must prove bis case by clear, unequivocal, and ' definite testimony. Tbis 'was refused, and in lieu thereof tbe court instructed tbat a preponderance of tbe evidence was sufficient. There was no error in this Jamison v. Jamison, supra. We are asked to say tbat tbat case is erroneous, and to overrule it. As it follows two other cases theretofore decided by tbis court, and simply reaffirms a rule of long standing, — one which seems to bave support in tbe great majority of cases, — we do not feel like disturbing it. Tbe distinction between the measure of proof in law and in equity cases in tbis respect has always been preserved by tbis court. All tbe cases relied on by appellant, save one, were suits in equity. In tbe exceptional case no question was made of tbe instruction. See Albright v. Hannah, 103 Iowa, 98. Cooley v. Lobdell, (153 N. Y. 596), (47 N. E. Rep. 783); cited by appellant, is not in point. If tbe instruction bad simply related to tbe effect of admissions said to bave been made by tbe elder Hutton, there would be some force in tbe defendant’s position, but tbis is *23not its purport. See, also, as sustaining our conclusions, and directly applicable to tbe facts of this case, Sweeney v. O’Hora, 43 Iowa, 34. Another instruction asked by defendant read as follows: “When it is sought to. take a case out of the statute of frauds, and avoid its operation in nullifying the contract, upon the ground of part-performance, it is indispensable that the parol contract or gift should be established by clear, unequivocal, and definite testimony, and the acts ■ claimed to be done thereunder should be equally clear and definite, and referable exclusively to the said agreement of gift.” This was also refused but the trial court charged as follows: “Before the plaintiff would be entitled to recover, he must satisfy you from the evidence, that the plaintiff did pay some part of the purchase price of said premises, or that he has, with the actual or implied consent of the said M. H. Hutton, taken possession of said premises under and by virtue of said contract.” There was no error in refusing the instruction asked. The word “satisfy” is as strong as the words used in the instruction asked. Rosenbaum Bros. v. Levitt, 109 Iowa, 292, and cases cited. The court also instructed' as follows: “If you find the plaintiff was in possession of said real estate at and before the time said verbal contract sued upon by plaintiff was made, if you so find, and that plaintiff -did continue in possession of said premises after the time said alleged, contract between the plaintiff and the said M. H. Hutton is shown by the evidence to have been made, if you so find, then the fact that the plaintiff, continued in possession of said premises will not be sufficient to establish that the defendant did take possession of said premises under and by virtue of said contract, and, in order to entitle the plaintiff to recover, you must find from the evidence that at the time or after said alleged contract was made the plaintiff did change his conduct or perform some act which indicates that he did take and hold possession under and by virtue,of said contract.” This, as we understand it, covers the exact point made by the defendant in the *24instruction asked. Moreover, under the' holding in the Sweeney Case, supra, the instructions given on the burden-of proof and the question of part performance were as favorable as appellant was entitled to. In the ninth instruction the court said, among other things: “If-you find that the plaintiff is ■ entitled to recover herein, then, in arriving at your verdict, you will first determine the value of said farm described in plaintiff’s petition at the time of the death of said M. H. Hutton; and from such value of said farm you will take the full amount of said mortgage note, with all unpaid interest up to the present time, at-the rate per cent, thereof as is shown by the evidence. You will also take therefrom the sum of nine hundred dollars, which was to be paid to- the heirs of M. II. Hutton, if you so find, and you will return your verdict in favor of the plaintiff for the balance thus found.” This is objected to because it invades the province .of the jury. The argument is that the jury could, under the evidence, as well have found that plaintiff was to pay the heirs the sum of $2,-000 as $900, and that, the exact agreement should have been left to the jury. -There was evidence tending to show that plaintiff was to pay the other heirs from $1,000 to $2,000. Indeed, in a letter written at his suggestion it was stated that he was to- pay $2,000 in addition to- the incumbrance against the land. True, there was other evidence to the effect that he was to pay but $900, and the petition or claim alleged that this was the agreement, but, in view of the conflict, we think the question of amount was for the jury. The statement in the petition was denied by the defendant, and the court should not have' assumed that the amount he agreed to - pay was $900 or nothing. This error seems so plain that no amount of argument will make it any clearer. But see Case v. Burrows, 52 Iowa, 146; Saar v. Fuller, 71 Iowa, 425. Appellee argues that the error was without prejudice, but we do not think so. If the jury had found that plaintiff had agreed to pay $2,000, instead of $900, the verdict would have been *25for as much less as the difference between these two amounts.
III. Claim is made' that the court should have sustained appellant’s motion for a new trial because of insufficiency of the evidence to support the contract claimed. In view of a retrial, we do not feel justified in expressing an opinion on this point.
15
16. IV. Hut one other question is argued, and that, the sufficiency of the evidence under the instructions to take the case out of the statute of frauds. There was some evidence to the effect that plaintiff’s original contract was of purchase, and not of lease, and that Gee’s occupancy of the.land with him was by sufferance. If the jury found this to be trae, then the sole question in the case was whether plaintiff’s possession was under a lease, or in virtue of a purchase of the land, and in either event his possession was sufficient to take the case out of the statute. But there was also evidence to the effect that plaintiff and Gee held the possession of the land for nearly two years under a contract of lease; and that plaintiff then made the claimed agreement of purchase. If the jury found this the true state of affairs, then the statute of frauds is applicable, and plaintiff, in order to recover, must show that his possesion, and the making of improvements- were exclusively referable to this contract of purchase. The rule seems to be well settled that, if one is already in possession of land under a contract of lease, his continuance in that possession will not be sufficient to support a claim of part performance under a subsequent contract of purchase. Recknagle v. Schmaltz, 72 Iowa, 63; McPherson v. Berry, 92 Iowa, 71. It was for the jury, under this evidence, to determine how plaintiff went into, the possession of the premises and made the improvements thereon.' If under a contract of lease, then we think he has failed in his action. If under a contract of purchase, then his possession, if referable exclusively to that contract, would take the case out of the statute.
*26The ultimate question here is, under which contract did plaintiff take possession % On this point, in view of the retrial, we should not express an opinion. The instructions fully covered the matter, and, as we have heretofore said, were unobjectionable; but for the error pointed out the judgment must be reversed.