Bassett v. Noble
| Decision Date | 31 May 1884 |
| Citation | 15 Bradw. 360,15 Ill.App. 360 |
| Parties | JOHN R. BASSETT, Adm'r pro tem.,v.EMILY J. NOBLE. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Mercer county; the Hon. JOHN J. GLENN, Judge, presiding. Opinion filed August 20, 1884.
Messrs. BASSETT & WHARTON, for appellant; that the entries would be admissible to show payment of a preceding debt, but not that it was a loan of money, or that a debt was created by it from the person who made the entry or in whose book it was made, cited Adams v. Taylor, 21 Ill. 102; 2 Greenleaf on Ev. § 112; 4 Phillips on Ev. 121; McKinstey v. Pearsoll, 3 Johnson, 319.
Appellee is estopped from claiming wages unless an express contract is proved: Fetterhoff v. Paul, 73 Ill. 173; Morton v. Rainey, 82 Ill. 215; Miller v. Miller, 16 Ill. 296; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421; Griffin v. Bank, 74 Ill. 259; Meyer v. Temme, 72 Ill. 574; Brush v. Blanchard, 18 Ill. 46.
As to allowance of interest: Sammis v. Clark, 13 Ill. 544; City of Chicago v. Allcock, 86 Ill. 384; Devine v. Edwards, 101 Ill. 142; West Chicago Alcohol Works v. Sheer, 104 Ill. 586; Flake v. Carson, 33 Ill. 526; Myers v. Walker, 24 Ill. 133.
Mr. LOUIS D. HOLMES, for appellee; as to the right of appeal, cited R. S. 1884, Ch. 3, § 72; Hesing v. Att'y General, 104 Ill. 295; Schooner Constitution v. Woodworth, 1 Scam. 511; Lewis v. Shear, 93 Ill. 123.
Facts and circumstances may be shown that will imply a promise to pay and an express contract need not be shown: Warren v. Warren, 105 Ill. 567; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421.
Appellee, in 1848, at the age of four years, having lost her mother, was bound, with a younger brother, to her grandfather, William Crapnell, who died in 1859. Before his death the farm on which he lived had become the property of his son, appellant's intestate, by whom it was then being carried on and with whom his widowed mother, an unmarried sister, appellee's brother (afterward killed in the war) and appellee continued to reside. His mother died in 1871. His sister married in 1877, but remained with him except for a year or less during which she was in Texas. In 1870 he took to raise a bound girl, then of the age of twelve years, who lived with him until 1876, after which the family or household consisted of himself, his sister and the appellee, until his death. Besides the usual farming operations he cultivated for the last five or six years a truck garden. Appellee, from the time she was physically able, was always industrious, faithful and helpful, doing housework mainly, together with her aunt and the other girl mentioned, but frequently assisting him in the garden and on two or three occasions in unloading and shucking corn. That he highly appreciated her services and character was shown by invariable kindness in his conduct and expressions. He sent her away to school at Aledo before she became of age and kept her there afterward, providing for her tuition, board and other expenses, and later at the Sister's Academy in Davenport, Iowa. He took her with him to church and on his visits about the neighborhood, and allowed her to buy for herself at the stores in town what she saw fit, on his credit, without restriction. Every witness on both sides testified that she was treated in all respects just as a member of the family.
She had $50 from her grandfather's estate in March, 1866, and small sums occasionally from her grandmother, the highest shown being one dollar. She also did some sewing for other persons from time to time for which she received pay, and some premiums at fairs. This is all that appears in relation to her pecuniary means or resources.
Neither she nor her uncle ever kept an account with the other. There was never any express contract nor anything whatever said between them about wages or other compensation for her services, although he undoubtedly intended as he repeatedly stated to provide for her liberally with land, as a reward for her faithfulness, which she well deserved. But without executing it, in December, 1881, he died, a bachelor, intestate.
Appellee became his administratrix, but having a demand of her own against the estate, which she filed Nov. 25, 1882, the county court appointed appellant to appear and defend for it. On the trial there she was allowed $3,350, and in the circuit court on appeal, $2,500, of which $500 was remitted, and thereupon the motion for a new trial was overruled and judgment entered for the claimant for $2,000. Bassett then appealed to this court.
Appellee has assigned for cross-errors that the circuit court overruled her motion to dismiss the appeal from the county court, and allowed Bassett to file an amended appeal bond. It is contended that his functions ended with the trial in the county court, and that the circuit court acquired no jurisdiction of the case so as to allow an amended bond to be filed, or take any other action therein but to dismiss the appeal.
For this proposition counsel relies on the provision of the statute under which Bassett was appointed, being § 72 of Ch. 3 of the R. S., and as follows:
The argument is, that the right to appeal, for a trial de novo, is derived wholly from the statute and can be exercised only in the cases and manner and to the extent thereby allowed, and that the power of appointment to appear and defend for the estate on appeal, being given only where the executor or administrator takes the appeal, it does not exist where he does not take it. And therefore, is the anomalous and startling conclusion, though the claimant may appeal the estate may not.
From this view we must dissent. The right of appeal is not derived by either party from this section. It recognizes but does not confer it. That right is given by the 68th section, which declares that “in all cases of the allowance or rejection of claims by the county court, as provided in this act, either party may take an appeal from the decision rendered to the circuit court of the same county,” etc. This was such a case. The only peculiarity about it was that the general representative of the estate was the party adverse to it. It was necessary, therefore, if a defense was to be allowed, to provide somebody to appear for it specially quoad hoc. Section 78 meets this necessity and no more. John R. Bassett was duly appointed for that purpose. He was not thereby made administrator, but the attorney for the estate in this case; and although the authority conferred by the appointment may not have extended beyond the case in that court, it embraced all that an attorney duly appointed for any other party could legitimately do in such case in that court. If successful on the trial there, no further action on his part would be required. His functions under the appointment would be ended, and the fact that he tried the cause below would not authorize him to appear on appeal in another court. Covill v. Phy, 24 Ill. 37. Hence, the necessity of the provision for a new appointment where the claimant appeals. But if unsuccessful, and he thought it his duty, then by further and legitimate action in that court, to wit, by filing a proper bond and getting it approved, he would acquire a status in the circuit court on appeal, by operation of the law and the express sanction of the county court. Hence there was no necessity for a provision for a new appointment in that case. In our opinion, then, the last sentence in section 78 does not, by implication, leave the estate, when defeated in the lower court, without remedy by appeal, and thus limit the operation of the 68th, which in the clearest terms gives it in all cases, to either party. The cross-errors are not well assigned.
Appellee's account of her claim as filed embraces:
First, money loaned, in eight sums aggregating $302.40, the latest of which, with one exception, is charged as of July 6, 1871. Of the one excepted, which is of August, 1881, amounting to $30, there was no evidence offered. The same is true of another item of $40. Of the others, excepting the $50 from her grandfather's estate in 1866, the receipt of which it was said he verbally admitted, the only evidence consisted of entries in his “Cash account,” in pocket diaries of 1869 and 1870, in the following form: “Of Em. $--” or “Cash received of Emma $--.” We do not say that these entries were incompetent, but it must be apparent in the light of the evidence as to the relations of the parties and her pecuniary means, and from some of the amounts stated, as $113. . 10 and $14. 40, and the place and manner of their appearance, that their weight as proof of loans is but slight. Certainly they are not inconsistent with the supposition that the sums mentioned were moneys received by her for him, and paid over at the times respectively stated. According to the evidence, “she sometimes did sell things from the market garden when he was away from home, and would give the money to him.”
However that may be, these items were all barred by the Statute of Limitations, unless revived by a new promise sufficient for that purpose. Upon a careful examination we fail to find any evidence that he ever in any way alluded to these items or either of them, or to such indebtedness to her as for money loaned, or for any cause that could embrace money loaned. All of it that the record shows which can refer to or include these is the naked entry as...
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