Brady v. Brady's Estate

• Decision Date: 11 September 1923
• Parties: BRADY v. BRADY'S ESTATE et al.
• Court: North Dakota Supreme Court

50 N.D. 114

194 N.W. 938

BRADY

v.BRADY'S ESTATE et al.

Supreme Court of North Dakota.

July 23, 1923.

Rehearing Denied Sept. 11, 1923.

Syllabus by the Court.

In an action by plaintiff against the administrator of the estate of her deceased mother to recover for alleged services rendered in the mother's lifetime, it is held, that there is not sufficient evidence in the record to support a verdict for the plaintiff, and that the presumption of gratuitousness arising from the relationship of the parties is not negatived by competent evidence so as to entitle plaintiff to recover on an implied contract.

Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.

Action by Mary Brady against the estate of Johanna Brady, deceased, and another, as administrator of such estate. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

Pugh, District Judge, dissenting.Newton, Dullam & Young, of Bismarck, for appellants.

Sullivan, Hanley & Sullivan, of Mandan, for respondent.

JOHNSON, J.

This is an action to recover for services alleged to have been performed by the plaintiff for her mother, Johanna Brady, deceased, in and about the management of a rooming house operated by the decedent at Bismarck, N. D., for several years prior to her death, which occurred on the 22d day of January, 1921. The claim was presented to the administrator of the estate, who disallowed the same, and suit was brought thereon. The administrator first appointed was J. D. McDonald, husband of one of the three daughters of the decedent, Kate Brady McDonald, the other two daughters being the plaintiff, Mary, and a sister, Nellie Parker. There are no other heirs. Subsequently one J. P. Wagner succeeded McDonald as administrator. At the time of the trial Mr. McDonald was administrator of the estate.

In 1883, when plaintiff was about 21 years of age, the decedent and her three daughters came to Bismarck. Three of them established, as a joint venture a millinery and dressmaking business under the name of “Kate Brady & Co.” The firm continued in existence for about 12 years, and during that time the property known as 307 Fourth street, in Bismarck, was purchased, and the house furnished with firm money, the title being placed in the name of the decedent. The house at that time had 7 rooms, but, having been partially destroyed by fire, was rebuilt in 1907 or 1908 as a house of 14 rooms, designed for a rooming house. The furniture originally purchased was in the house at the time of the trial.

During these early years it appears that the plaintiff was in ill health, and required considerable medical attention. Bills for the services of professional men and for drugs necessary in her treatment were paid out of firm money, though she was never a member of the firm. She was sent to a hospital in another state for treatment, and the firm paid all expenses. She “went east” for three years on account of ill health. This was after the firm was dissolved, but the expenses were paid out of firm funds. Plaintiff again went to a hospital for treatment in 1919 or 1920. It appears that the cost of all the food and clothing necessary for all the members of the firm and for plaintiff was paid out of firm funds. After the firm went out of business, about 1895 or 1896, the plaintiff lived with her sister in Bismarck for some years, and later with her brother at Helena, and again with a brother at Seattle until about 1908, when she returned to Bismarck. From 1908 until the death of her mother she remained substantially all of the time with her mother in the rooming house.

The evidence shows that the rooming house was operated by the plaintiff and the decedent; that the work was done by both of them when their health permitted; and that the decedent was feeble and infirm and, in fact, bedridden during several months-several years, according to the testimony of plaintiff's witnesses-prior to her death. During the time of decedent's ill health it appears that she needed a good deal of attention. She was unable to dress herself alone; she had to have personal help, and subsequent to August, 1920, the calls of nature were responded to in her room by the use of a chair conveniently arranged for that purpose, and needed assistance and attention were given her nearly all the time by the plaintiff. While they were in good health the plaintiff looked after the rooms upstairs and the mother down stairs. There appears to have been a division of labor in running the boarding house until the mother became, through the infirmities of age and disease, unable to work actively, whereupon additional labor in connection with the operation of the rooming house was imposed upon the plaintiff.

The evidence shows that money was deposited by the plaintiff in a bank in Bismarck, and that the plaintiff sometimes signed her mother's name to checks which were cashed. Roomers sometimes paid their room rent to plaintiff and sometimes to the decedent.

The proof failed to show an express contract, and plaintiff elected to stand on an implied contract. The jury returned a verdict for the plaintiff, upon which judgment was entered, and from this judgment this appeal is prosecuted by the defendant. Four assignments of error are set out in appellant's brief, the last of which we shall consider first, because in our view it is decisive of this appeal.

At the close of the trial defendant's counsel made a motion to dismiss upon the ground that the evidence failed to show a cause of action, and that there was a failure of proof as to the existence of any contract, express or implied. The court denied the motion. The appellant further specifies as error “that the evidence is of that character that the verdict should be set aside as a matter of discretion,” and “that the evidence is insufficient to support a verdict, as no facts have been proved which justify the conclusion that there was any contract between mother and daughter.” The motion made by the defendant after both parties rested is in the nature of a demurrer to the evidence, and was, in fact, a motion for a directed verdict, although the motion does not in terms so state. The question of the sufficiency of the evidence to support the verdict is, therefore raised, and we must examine the record to determine whether or not there is substantial competent evidence in the record to support the verdict of the jury.

The plaintiff having elected to stand on an implied contract, the question that arises at the threshold of the case is whether or not, at the time the services were rendered, both parties intended and expected compensation therefor on the basis of their reasonable value. On this point the testimony of the plaintiff's witness John Runge is most explicit and probably most favorable to plaintiff's theory. He testified that he roomed at the rooming house maintained by the decedent in Bismarck from September, 1909, until the time of the trial; that, during this time, and particularly from and after the year 1913, the plaintiff did most of the work; that she swept the rooms, made the beds, did the washing, cooked the food, took care of her mother, and dressed her, combed her hair, and generally ran the place. He says he had conversations with the mother at different times. Counsel for plaintiff asked the following question:

“Now then, with reference to this first conversation along in 1912, tell us what was said; tell us about what was said by her.”

To which the witness answered:

“We had quite often a conversation about it, about loaning money, etc., and said that-or I told her she better give up the rooming house; the work would become too hard for Mary to do; and she says that was the only thing that they had to keep up the house expenses, to keep down the expenses, and that after she died she figured that Mary was going to keep the house.”

Again, the witness says that the decedent said to him, in substance, that she would not sell the rooming house, because a son-in-law would borrow the money, and decedent would then have nothing left for Mary, the plaintiff. It appears that the witness frequently suggested to the decedent that she give up the house, and on one such occasion the witness says the decedent told him that after she was dead she could not pay wages to plaintiff; that she would get her wages in the property. Then this question and answer appear:

“Q. What was it she said, if anything, about getting wages after she was dead-about Mary getting wages after she was dead? A. Well, there was nothing said about it.

Q. What-a while ago you stated about something Mrs. Brady had said as to what Mary would get after Mrs. Brady died. Now, what was that? A. She was going to leave her the property.”

Mrs. Lauder testified for the plaintiff with reference to the work done by Mary while witness roomed for a few months at the rooming house. On being asked if decedent and witness had conversations with reference to how plaintiff would receive her compensation, the witness said: “No; there was nothing said.” This witness roomed in the house from August, 1920, to February, 1921.

Mrs. Wermerskirchen, a witness for the plaintiff and a neighbor of the decedent for about two years before her death, stated that decedent said to her that she...