Bootes v. Gwinner's Administrator

• Decision Date: 14 November 1933
• Citation: 251 Ky. 322
• Parties: Bootes v. Gwinner's Administrator.
• Court: United States State Supreme Court — District of Kentucky

251 Ky. 322

Bootes v. Gwinner's Administrator.

Court of Appeals of Kentucky.

Decided November 14, 1933.

1. Pleading. — In action on note, prayer of counterclaim that defendant be adjudged owner of bonds and bank deposits or recover judgment against plaintiff, payee's administrator, for certain sum, held sufficient to entitle defendant to recover on contract by deceased to give defendant bonds and money for furnishing deceased a home (Civil Code of Practice, sec. 90).

Counterclaim alleged that defendant and deceased entered into contract whereby deceased agreed to give defendant sum of money and certain bonds, in consideration for which defendant was to furnish deceased with home during his life, and that defendant accepted offer and gave defendant bonds in certain sum and deposit slip for certain amount, and that defendant furnished deceased with suitable home for certain period after which he left, and prayer was that defendant be adjudged owner of bonds and remainder of deposits in bank, and that, if same could not be produced, defendant have judgment against plaintiff administrator for such sums and for all proper relief.

2. Frauds, Statute Of. — Contract to keep and care for person for life held not within statute of frauds (Ky. Stats., sec. 470, subd. 7).

3. Evidence. — Defendant could plead contract by deceased to give defendant certain bonds and money to keep for deceased during life as set-off and counterclaim in administrator's action on note payable to deceased.

4. Pleading. — Answer and counterclaim seeking recovery on contract made with deceased held not demurrable for want of verification (Ky. Stats., secs. 3870, 3872, 3874).

5. Pleading. — Where defendant in counterclaim sought recovery on contract made with deceased, it was plaintiff administrator's duty to proceed by motion, instead of by demurrer, to have defendant verify claim (Ky. Stats., secs. 3870, 3872, 3874).

6. Executors and Administrators. — Where administrator did not proceed by motion to have claimant verify claim against estate set up in counterclaim, it was too late at close of testimony to raise objection (Ky. Stats., secs. 3870, 3872, 3874).

7. Executors and Administrators. — Personal representative may waive demand on claim against estate required by statute (Ky. Stats., sec. 3872).

8. Damages. — Measure of damages, where decedent agreed to pay certain sum to defendant to keep decedent for life, but decedent left defendant's home, was reasonable sum for services rendered during time decedent lived with defendant.

Appeal from Campbell Circuit Court.

GEORGE J. HEROLD for appellant.

C.W. YUNGBLUT and ARTHUR C. HALL for appellee.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

Charles W. Weinel, administrator of the estate of Martin Gwinner, deceased, instituted this suit in the Campbell circuit court to recover of Emma K. Bootes the sum of $1,500, announced by her promissory note, dated November 27, 1926, bearing interest at the rate of 4 per cent.

Defendant filed her answer, counterclaim and setoff, in which she admitted the execution and delivery of the note, but pleaded as a counterclaim and set-off that in October, 1925, she and Martin Gwinner, the deceased, entered into a contract whereby decedent agreed to give her a sum of money and certain Government bonds, in consideration for which she was to furnish him a home with her and her brother, during the life of decedent. The pertinent part of her allegations relating to the contract are as follows:

"Defendant says that in October, 1925, the decedent, Martin Gwinner, who was her cousin, and who was then 76 years of age and had no home came to this defendant and offered her two thousand ($2,000.00) dollars which he had on deposit in the Bank of Alexandria, at Alexandria, Kentucky, and registered United States Liberty Bonds in the sum of Seven Hundred ($700.00) dollars if she would provide a home for him as long as he should live. Defendant accepted said offer and said Martin Gwinner and defendant entered into a contract in conformity therewith and the said Martin Gwinner gave and delivered to defendant, Emma K. Bootes, the registered United States Liberty Bonds in the sum of $700.00 and the deposit slip for the $2,000.00 on deposit in said Bank of Alexandria."

She further pleaded, however, that it was agreed that the decedent was to collect the interest on the Liberty bonds, and that defendant would pay him interest at 4 per cent. per annum on the money which was on deposit in the said bank, and that the principal of said bonds and money would become defendant's property at the death of Martin Gwinner, the deceased. She further alleged that, pursuant to the said agreement, she furnished deceased with a suitable home for a period of 44 months, and that, without any cause or reason therefor, deceased left the home of defendant and went to live with Charles W. Weinel, the plaintiff herein. Gwinner died in 8 months after he left the home of appellant.

On November 27, 1926, which was more than a year after entering into the alleged contract, appellant told decedent that she wanted to borrow of him $1,500, and to this he assented. They went to the Bank of Alexandria, where Gwinner had his money on deposit, and Gwinner drew from the bank the sum of $1,500, and this sum was deposited to the credit of appellant. The cashier of the bank prepared the note which appellant signed, being the same note sued on herein. Immediately after Gwinner left the home of appellant, in 1929, he went to the bank and told the cashier that he wanted him to collect the note. Considerable negotiations developed between Gwinner and the cashier of the bank, as his representative, and the appellant and her brother, relating to the collection of the note. Appellant's brother offered to pay Gwinner a less sum than the face of the note, as a compromise, but Gwinner refused to accept any sum less than that represented by the note. So far as the record discloses, there was nothing said about the contract between Gwinner and appellant upon which she bases her counterclaim, until after Gwinner's administrator instituted this suit.

In the prayer of her answer and counterclaim, appellant asked that she be adjudged the owner of the Liberty bonds and the owner of the remainder of the sum of $2,000 deposited in the said bank, and, if same cannot be produced, for a judgment against plaintiff, administrator of the estate of Martin Gwinner, for the said sums and for costs herein expended and for all proper relief. Plaintiff's reply to the answer and counterclaim consisted of a traverse only.

Upon the issues thus joined, a trial was had before a jury on the issue as to whether or not the deceased and defendant entered into the alleged contract. At the close of the testimony, plaintiff demurred to the answer and counterclaim, which demurrer was sustained, and, defendant failing to further plead, the court peremptorily instructed the jury to return a verdict for the plaintiff for the sum of $1,500, with interest as therein stated, and judgment was entered accordingly. Defendant appeals.

It is argued for plaintiff, appellee, that the prayer contained in the answer and counterclaim and set-off of appellant is insufficient in that it is not supported by the allegations of the pleading on which it is based. While the prayer is not in the usual form of prayers generally used in counterclaims and set-offs, etc., it is our conclusion that it is broad enough in substance to entitle defendant to the relief sought according to the allegations of the pleading. Civil Code of Practice, sec. 90, and cases...