Brady v. Estate of Brady
| Decision Date | 23 July 1923 |
| Citation | 194 N.W. 938,50 N.D. 114 |
| Court | North Dakota Supreme Court |
Rehearing denied September 11, 1923.
Appeal from the District Court of Burleigh County; Nuessle, J.
Reversed.
Reversed and remanded.
Newton Dullam & Young, for appellant.
An express contract must be proved, or it must be shown that at the time the service was rendered both parties intended and expected that the service was to be paid for, and in such case stricter proof is required than in other cases, and no recovery can be had unless an express contract or circumstances equivalent thereto are shown. Humble v Humble, 152 Ky. 160.
Daste v. Olson (La.) 29 L.R.A.(N.S.) 297.
"Particularly strong and convincing proof is required where the claim is stale, or where the services extended over a considerable period of time and no demand for compensation was ever made during the decedent's life time." 18 Cyc. 533.
"In the absence of circumstances showing extraordinary services to the deceased, the presumption of gratuity arising from the relationship of the parties negatives the liability upon implied contract." Krapp v. Krapp, 47 N.D. 308.
Hoskins v. Sanders, 80 Conn. 19, 21.
"Stale claims are regarded with special disfavor and require very strong, and conclusive, testimony to establish them, particularly where the claim was never asserted during decedent's lifetime." 24 C. J. 406.
Re Mathoit, 243 Pa. 375, 90 A. 140.
Sullivan, Hanley and Sullivan, for respondent.
This action on the part of the plaintiff is based upon the principle of law that the child is entitled to payment from a parent for services rendered if from the circumstances under which the services were rendered, a contract to pay for the services may be inferred. 29 Cyc. 1631 and cases cited under note 5; Krapp v. Krapp (N.D.) 181 N.W. 950; Bergerson v. Mattern (N.D.) 170 N.W. 877.
"In fact this element (nature of the services) ought not infrequently to be treated as being sufficient of itself to rebut the presumption which might otherwise be raised by the relationship of the parties, that the services were intended to be gratuitous."
"The nature of the services must be considered as an element bearing upon the enforceability of the claim." 11 L.R.A.(N.S.) P VII. p. 890.
The nature of the services for which compensation is claimed is an element of great weight in determining the question of liability. Murrel v. Studstill, 30 S.E. 750; Frailey v. Thompson (Ky.) 49 S.W. 13.
JOHNSON, J. BRONSON, Ch. J., and BIRDZELL and CHRISTIANSON, JJ., concur. Mr. Justice NUESSLE being disqualified Judge THOS. H. PUGH of the Sixth Judicial District sitting in his stead. PUGH, District Judge (dissenting).
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, North Dakota, 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 twenty-one 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 & Company." The firm continued in existence for about twelve years and, during that time, the property known as 307-4th 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 seven rooms, but, having been partially destroyed by fire, was rebuilt in 1907 or 1908 as a house of fourteen 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, downstairs. 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 plaintiff.
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, altho 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 mose 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,...
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