Bowie v. Trowbridge (In re Oldfield's Estate)
| Decision Date | 23 March 1916 |
| Docket Number | No. 29898.,29898. |
| Citation | 156 N.W. 977,175 Iowa 118 |
| Parties | IN RE OLDFIELD'S ESTATE. BOWIE v. TROWBRIDGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Carroll County; M. E. Hutchison, Judge.
Action for damages for breach of promise of marriage, and for services rendered decedent during his lifetime. Both parties appeal. Affirmed on both appeals.
See, also, 158 Iowa, 98, 138 N. W. 846.
Brown McCrary, of Carroll, for appellee.
The controversy in this suit is based on two claims filed against the estate of Edward A. Oldfield, deceased. The plaintiff states her causes of action in two counts. In the first count of her petition she seeks to recover damages for a breach of promise of marriage. In the second count she seeks to recover for personal services rendered by her to decedent during his lifetime. It appears that Edward A. Oldfield died on December 2, 1910, testate; that his will was duly admitted to probate, and Wm. Trowbridge, defendant herein, appointed executor of the will. On the 11th day of January, 1911, the appellee, plaintiff, filed a claim against the estate, wherein she asks $10,000 on account of a breach of promise of marriage which she alleges was made between her and the decedent. In the second count, she claims $3,975 for services rendered by her for decedent from September 14, 1893, to September 2, 1910. To the first count of plaintiff's petition, based on an alleged promise of marriage, the defendant interposed the following defenses: First, that any agreement of marriage entered into was, by mutual consent of the parties, postponed and deferred from time to time up to the death of Edward A. Oldfield; that consummation of the agreement was prevented by said death; second, that, at the time the alleged breach of promise occurred, if any, the said Edward A. Oldfield was suffering from an incurable disease, known as pernicious anemia, which made it impractical and impossible for him to consummate a marriage with the plaintiff; that any marriage at that time would have aggravated said disease and shortened his life; that the incurable character and disastrous consequences of the disease were unknown to Oldfield at the time of the alleged promise; third, defendant pleads the physical condition of Oldfield in mitigation of damages. To the second count of plaintiff's petition, based on the claim for services rendered, the defendant pleads: First, that all of said claims and demands which accrued prior to five years before the filing of the claim are barred by the statute of limitations. Second, that during the time claimed for services rendered, the plaintiff was a member of decedent's family, receiving support therein as a member of the family; that during all the time that plaintiff and her five children resided with Oldfield, she and they were furnished with food, clothing, and other necessaries of life in decedent's family; that Oldfield received no pay therefor except from the services rendered by the plaintiff and her children; that the necessaries furnished were at least of the value of the services performed, and that she was fully compensated therefor by such support and maintenance; that, at the time plaintiff resided in the family of Edward A. Oldfield, the defendant avers the said Oldfield believed that the services rendered by the plaintiff during such time were gratuitous, and were rendered by the plaintiff, and received by Oldfield, without the expectation on the part of either that payment should be made therefor. In addition to the foregoing defenses, the defendant pleads a general denial as to all matters alleged by the plaintiff in her respective claims. Upon the issues thus tendered, the cause was tried to a jury, and a general verdict returned for the plaintiff for $3,164. The jury found, however, specially that the plaintiff was not entitled to recover on the first count of her petition for the breach of promise of marriage. A judgment having been entered upon the verdict, both parties appeal. The defendant, having appealed first, is designated as appellant, and the plaintiff as appellee when referred to hereafter in this opinion.
As defendant first appealed, we will give our attention first to a consideration of the claim based upon the second count of the petition upon which the jury allowed plaintiff to recover. In this count of her petition she seeks to recover for services rendered, and alleges that in the year 1893, Edward Oldfield lived on a farm in Sac county; that at his instance and request, and by express agreement, this plaintiff came to his place to work; that in 1894, she brought her family with her, consisting of five children; that she continued to work for him from September, 1893, to September, 1910, except when temporarily away on a visit; that the reasonable value of her services, during all the time was $5 a week; that her work consisted of household duties, work and labor in the house, and manual labor upon the farm. The plaintiff further alleges that payments were made to her from time to time during said period.
[1] The first alleged error, relied upon by the defendant for reversal, is based on the action of the court in giving instruction 25 to the jury, on its own motion. The theory upon which the error is predicated is that the plaintiff's petition seeks to recover for services rendered under an express contract, while this instruction, it is claimed, authorizes her to recover on an implied contract. A mere statement of what the instructions contain is sufficient to negative appellant's contention. The court recognized the fact that the plaintiff predicates her right to recover upon an express agreement, and denied her right to recover except upon proof of such express agreement. The court said:
The court in the instruction complained of simply told the jury that the agreement, alleged, could be proven by facts and circumstances, as well as by direct evidence. Many facts about which there is controversy are so proven. The mouths of both parties to this controversy were closed; one by death, and one by operation of law. That there was, or was not, such an agreement as she alleged was a substantive fact to be proven, as the court says, by direct evidence, or by facts and circumstances appearing in evidence, not necessarily by direct evidence. If the facts and circumstances proven established in the minds of the jury a belief in the existence of the controverted fact, then the fact itself was proven, even though there were no direct evidence of its existence.
[2] That a party cannot recover upon an implied contract where he pleads and relies upon an express contract, is elementary. No rule is more familiar to the profession than the one which requires a case to be tried upon issues made in the pleadings. No ultimate fact, not pleaded, can be considered in determining such liability. This rule was recognized on the former appeal of this case (158 Iowa, 98, 138 N. W. 847), in which it was said:
In the twenty-eighth instruction given to the jury the court expressly said:
“In this case, plaintiff cannot recover anything for her services * * * unless she has established * * * that such services were rendered by her under and by virtue of an express agreement with Oldfield for the performance of the same.”
[3] It is next contended that the court erred in giving the twenty-eighth instruction, for the reason, as it is said in argument, that the instruction assumes that there is evidence of an express agreement, and that such agreement did not contemplate payment for such services by furnishing plaintiff with a home, food, clothing, etc., for herself and family. This instruction must be read in connection with instructions 26 and 27, immediately preceding, in order that its full import and purpose may be understood. The contention of the defendant was that the plaintiff was a member of decedent's family; that the labor performed was performed by her as a member of the family; that there was no reasonable expectation on her part of receiving pay, and that there was no expectation on his part of compensating her for the services; that in no event could she recover for services rendered, in the absence of an express contract such as alleged by her in her petition. The twenty-sixth and twenty-seventh instructions given are as follows:
“Where one person performs services for another, and the other furnishes a home, food, and clothing for the first, a presumption arises that neither expects to pay or receive compensation. If, therefore, you find by a preponderance of the evidence that plaintiff did perform services for Oldfield, and Oldfield furnished a home, food, and clothing to the plaintiff, and if you further find that the plaintiff has not shown by a preponderance of the evidence that Oldfield agreed or expected to pay her for services, then the plaintiff is not entitled to receive anything therefor, and your verdict should be for the defendant on this branch of the case.
If you should find plaintiff to have been living with decedent as a member of his family and receiving support therein, a presumption would arise that such services as rendered by her were gratuitous, and the plaintiff must overcome this presumption in order to entitle her to recover for such services by showing...
To continue reading
Request your trial