Koch v. Hebel

• Decision Date: 29 October 1888
• Parties: ELIZABETH KOCH, Respondent, v. JACOB HEBEL, Administrator of WILLIAM KOCH, Deceased, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 103

ELIZABETH KOCH, Respondent, v. JACOB HEBEL, Administrator of WILLIAM KOCH, Deceased, Appellant.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Johnson Circuit Court. --HON. CHARLES W. SLOAN, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

S T. White and O. L. Houts, for the appellant.

(1) The statement of plaintiff's claim sets forth a legal liability created by the law itself, and not by any mutual understanding and agreement between plaintiff and the deceased. After the opening statement of plaintiff's counsel that she was his daughter living with her father keeping house for him and thus performed the service sued for, her right to recover on a quantum meruit was barred, and the court should not have heard any evidence in support of her claim. And she, having declared in this form of action, could not prove a special contract (which she must do if she can recover) in support of her statement. Bishop on Contracts [Eng. Ed.] secs. 184, 185, 187, 223, and authorities cited below. (2) There was no evidence offered by plaintiff tending to show that while plaintiff was living with her father as his housekeeper, she expected to receive any other compensation other than what she was daily receiving, and the court should have sustained the demurrer to plaintiff's evidence. Authorities cited below. (3) Even if there might arise a scintilla of a presumption of an intended payment by her father, the whole facts are so explanatory of each other that the presumption was fully rebutted, and a verdict and judgment on the whole case should have been directed in favor of defendant. Authorities below. (4) If the proof tended to show anything it is that plaintiff expected a legacy or a gift of the house and lot in Holden. Such proof does not tend to support this demand. And the proof offered if competent to establish her demand is only of bare declarations of a doubtful nature, and doubtfully supported by testimony, and is not such as is required by law. As these propositions are so intertwined in the judicial decisions of this class of cases, it was thought best to present them together. Guenther v. Birkicht's Adm'r, 22 Mo. 439; Smith v. Myers, 19 Mo 434; Hart v. Hart's Adm'r, 41 Mo 445; Cowell v. Roberts, 79 Mo. 218; Gardner's Adm'r v. Schooley, 25 N.J.Eq. 150; Prickett v. Prickett, 20 N.J.Eq. 478; 15 Cent. Law Jour. 26; Cooper v. Cooper, 3 Ill.App. 492; Sanders v. Waggonseller, 19 Pa.St. 248; Luney v. Vantyne, 40 Vt. 501; Ryan v. Lynch, 9 Mo.App. 18. As to requisite proof: Duffey v. Duffey, 44 Pa.St. 398; 3 Wait's Actions and Defenses, 584; Hartman's Appeal, 3 Grant's Cases (Penn.) 234. As to expectation of legacy or gifts: Osborne v. Hospital, 2 Strange 728; Hiatt v. Williams, 72 Mo. 214; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37. As to waiving special contract and suing on quantum meruit: Stottling v. Sappington, 8 Mo. 118; Chambers v. King, 8 Mo. 517. (5) The burden of proof was on plaintiff, and the court erred in refusing an instruction of defendant to that effect. The court also erred in refusing other instructions asked by defendant which presented fairly all the issuable facts. (6) The court should have rebuked the counsel for plaintiff for making the remarks in his closing argument to the jury, which were objected to; and should have instructed the jury that they must not take into consideration the affidavit of plaintiff to her claim, in making up the verdict. Marble v. Walker, 19 Mo.App. 134; Brown v. Railroad, 66 Mo. 599; Miller v. Dunlap, 22 Mo.App. 97; Holliday v. Jackson, 21 Mo.App. 660; Ritter v. Bank, 87 Mo. 574. The affidavit of plaintiff to her claim in probate court was no evidence whatever, and being attached to the claim and going with it to the jury-room, would work an influence on them when accompanied by such remarks. R. S. 1879, sec. 196.

A. B. Logan and J. P. Orr, for the respondent.

(1) The court did not err in giving plaintiff's instructions. Reando v. Misplay Adm'rs, 90 Mo. 251; Hart v. Hart's Adm'r, 41 Mo. 445. (2) The doctrine in this case is well settled in Missouri, and needs no outside authorities. In this case it is a question for the jury, taking into consideration all the circumstances, including the nature and degree of relationship and the circumstances in life of the parties, whether there was an implied contract for compensation. Hart v. Hart's Adm'r, 22 Mo. 445; Guenther v. Berkicht, Adm'r, 22 Mo. 439; Smith v. Myers, 19 Mo. 434; Cowell v. Roberts, 79 Mo. 218; Reando v. Misplay, 90 Mo. 251. (3) The doctrine that after the attainment of majority, the promise to support the obligation to pay must be an express one, has not been accepted in this state. Cowell v. Roberts, 79 Mo. 218; Reando v. Misplay, 90 Mo. 251. (4) The court did not commit error in refusing defendant's instructions as asked, as the law of the case under the evidence was fairly presented to the jury by the instructions given at the instance of the plaintiff, and the instructions numbered ten, eleven and twelve, given by the court of its own motion, which last three mentioned instructions were favorable to defendant. Hart v. Hart's Adm'r, 41 Mo. 455; Cowell v. Roberts, 79 Mo. 218; Reando v. Misplay, 90 Mo. 251. (5) The court did not err in refusing to rebuke plaintiff's counsel for using the language complained of, to-wit: " The law closes her mouth; all she can say she says in this affidavit, when under her solemn oath she says this amount is correct and just and she has given the estate all credits it is entitled to." It was merely referring to a fact in the record, called out by defendant's counsel, and could not affect the standing of the record before the jury one way or the other.

RAMSAY J.

This action was tried in the probate court of Johnson county, in May, 1887, upon a demand presented by plaintiff for allowance against the estate of William Koch, deceased, which was in words and figures following:

" Estate of William Koch, deceased, to Elizabeth Koch, Dr.

To nine years' work and labor for said William Koch commencing on the first day of November, 1876, at the special instance and request of said Wm. Koch, $1,000.00."

" State of Missouri, )

) ss.

County of Johnson, )

Elizabeth Koch being duly sworn, upon her oath says to the best of her knowledge and belief, she has given credit to the estate of Wm. Koch, deceased, for all payments or offsets to which it is entitled on the demand above described, and that the balance therein claimed is justly due.

[Signed] LIZZIE KOCH.

Subscribed and sworn to, etc.

J. P. ORR, Notary Public."

The trial resulted in a judgment for plaintiff, from which defendant appealed to the circuit court of said county, where, in June following, it was again tried, resulting in a verdict and judgment for plaintiff for the sum of one thousand dollars, from which judgment the defendant has appealed to this court.

At the trial when plaintiff's counsel made a statement of the case to the court and jury, in which it was stated that the plaintiff was a daughter of William Koch, deceased, and had performed the work and labor mentioned in her demand, as such, the defendant's counsel objected to the introduction of any evidence under the statement, for the reason that plaintiff could only recover on a special contract to be proved, and not on a quantum meruit. The court overruled this objection, and the defendant excepting urges this ruling as the first ground for reversal. We do not think this objection was well taken. Notwithstanding the fact that family membership in itself implies that such services are gratuitous and without the expectation of pecuniary reward, the promise to pay may be implied from any facts and circumstances which in their nature justify the inference of an actual contract of hire, or an actual understanding between the parties to that effect. Hence in a similal case to this, it is said: " We would not be understood as laying down the law so as to require the plaintiff to procure proof of an express produce on the part of Birkicht (the person sought to be charged) to pay the plaintiff for his services after he became of age, or to produce proof of a specific contract for that purpose." Guenther v. Birkicht's Adm'r, 22 Mo. loc. cit. 448. That the principle here expressed governs this class of cases is shown in the following cases: Smith v. Myers, 19 Mo. 433; Hart v. Hart, 41 Mo. 441; Cowell v. Roberts, 79 Mo. 218; Reando v. Misplay, 90 Mo. 251. The evidence of an implied contract should always be clear and satisfactory and not depend upon mere loose declarations. Woods v. Land, 30 Mo.App. 176.

It appears from the evidence that in the fall of 1876 William Koch, and his wife Sarah, both well advanced in years, were living on a farm near Holden, Mo., that plaintiff, their daughter, then of age, was working out in the family of Fred. Burkharth, earning for sewing three dollars per week and when doing general housework two dollars per week; that plaintiff's mother was at this time sick and plaintiff left Burkharth's and returned to her father's home but whether at the request or solicitation of her parents does not distinctly appear in the testimony. The evidence introduced by plaintiff tends to establish the fact that from this time plaintiff lived with her parents upon the farm until after her mother's death, which occurred some time after plaintiff's return, and that she continued to reside with her father for a short time on the farm, and then in a residence which he purchased in the town of Holden, up to the time of his death, which occurred in August, 1886; that during all of this time, excepting a period of eight months, when plaintiff was absent on a...