Branch v. Lambert

• Decision Date: 11 April 1922
• Citation: 103 Or. 423,205 P. 995
• Parties: BRANCH v. LAMBERT.
• Court: Oregon Supreme Court

205 P. 995

103 Or. 423

BRANCH v. LAMBERT.

Supreme Court of Oregon

April 11, 1922

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Arthur Branch against L. S. Lambert, administrator of the estate of Nicholas Lambert, deceased. Judgment for plaintiff and defendant appeals. Reversed and remanded.

This is an appeal from a judgment obtained by plaintiff against the defendant as administrator of the estate of Nicholas Lambert deceased. Plaintiff's action is based upon two claims presented to the defendant, as such administrator, and rejected by him.

One of said claims is for $2,000, alleged to be the reasonable value of labor and services stated in the claim to have been performed by plaintiff for said deceased, at the instance and request of the latter, on and between the 15th day of February, 1904, and the 1st day of October, 1914, for which it is alleged, the deceased promised and agreed to pay when he sold the farm upon which deceased and claimant were then living. The other claim is for $1,000, alleged to be the reasonable value of labor and services stated in the claim to have been performed for said deceased by Mrs. Arthur Branch the wife of plaintiff, on and between the 1st day of October 1911, and the 1st day of October, 1914, for which, it is alleged, the deceased promised and agreed to pay at the time that he sold the farm upon which deceased and Mrs. Arthur Branch, the claimant, were then living.

Nicholas Lambert died on or about the 10th day of November, 1916; and thereafter, on the 17th day of November, 1916, letters of administration upon the estate of the deceased issued to defendant. The claims above mentioned were presented on the 20th day of January, 1920, and were disallowed and rejected on the 31st day of January, 1920. The claim of Mrs. Arthur Branch was assigned to the plaintiff after having been rejected by defendant, and this action was commenced on the 25th day of February, 1920.

The claim for services rendered deceased by plaintiff is the basis of plaintiff's first cause of action, and his second cause of action is based upon the claim of Mrs. Arthur Branch, his wife. In his complaint plaintiff alleges that the services performed by him for deceased, and embraced in the claim presented by him to defendant as administrator, were performed continuously on and between the 15th day of February, 1898, and the 1st day of October, 1914, and that the labor and services performed by his wife, and embraced in the claim presented by her to the defendant as administrator, were performed continuously on and between the 1st day of October, 1908, and the 1st day of October, 1914.

Defendant, by his answer, interposed a general denial to the allegations of plaintiff's complaint, and, as a further and separate defense to each cause of action set forth therein, alleged that the plaintiff's alleged cause of action "did not accrue within six years before the commencement of this action."

It appeared from the evidence in the case that Nicholas Lambert, deceased, and plaintiff's mother were married while plaintiff was quite young, and that plaintiff lived with his stepfather as a member of the family until October, 1912; that in 1905 plaintiff married, and he and his wife continued to reside with the deceased until 1912, when plaintiff and his wife moved away some distance to a farm which plaintiff had purchased; that, by reason of physical infirmities and old age, Nicholas Lambert, early in the year 1913, became incompetent to transact his own business, and in February, 1913, the defendant was appointed guardian of the person and estate of the said Nicholas Lambert, and continued to act as such until the death of deceased, November 10, 1916; that during the life of Nicholas Lambert no claim was presented to him nor to the defendant, as his guardian, for any of the services for which recovery is sought in this action, and no claim was presented either by plaintiff or his wife to the defendant, as administrator of the estate of the deceased, until more than three years had elapsed after the issuance of letters of administration to said defendant.

On the trial of the cause plaintiff introduced evidence, sufficiently corroborated to entitle it to be submitted to the jury, that in 1899 or 1900 the deceased expressly promised and agreed that, if the plaintiff would stay upon the farm and continue to do the work he had been doing, and such other work as was necessary to be done in operating and keeping up the place, deceased would pay him, in addition to one-half of the grain crops raised upon the place, the reasonable value of his services, when he sold the farm. The evidence showed that decedent then had an intention of selling the farm, and, to that end, made certain improvements about the farm, and offered it for sale; that, pursuant to this latter arrangement, plaintiff repaired fences and assisted in building new fences upon the premises, assisted in building a house and barn and granary and sheds thereon, dug drainage ditches, put in the crops and looked after harvesting them, assisted the decedent with his hogs and stock, milked from four to ten or more cows, marketed the cream, occasionally looked after the stock upon another farm owned by decedent, and generally performed the duties of a man of all work upon a farm continuously from that time up until October, 1912; that from 1905, when plaintiff married and brought his wife to reside with the deceased, the wife of plaintiff did the housework, helped milk the cows, and otherwise aided about the farm; that she rendered special services to deceased about the year 1908, when he was suffering from granulated eyelids, by putting medicine in his eyes several times a day; that she rendered further services in waiting upon deceased and attending to and nursing him for about a year during which time he suffered from dizzy spells as the result of a sunstroke; in 1911 the deceased was attacked by a bull and severely injured, from which injury he never fully recovered; that plaintiff's wife during this illness, and until plaintiff and his wife left the home of deceased in 1912, nursed and waited upon the deceased when he required such attention, which was frequently. Evidence was introduced that deceased promised and agreed to pay plaintiff's wife for all the services which she rendered to deceased. The evidence does not disclose when such payment was to be made. Between 1905 and 1912 there were four children born to plaintiff and his wife.

Defendant offered evidence that the plaintiff received from the deceased for his services one-half of the proceeds received from the sale of cream, in addition to one-half of the grain crop, and that, as a result of a settlement and adjustment arrived at between the deceased and plaintiff, the latter received two-thirds of the grain crop raised in 1911. Plaintiff admitted that he received one-half of the proceeds received from the sale of the cream during the last six months he was upon the premises, but denied the receipt of any other moneys from the sale of cream, except a few dollars once in a while, gratuitously given him by the deceased when the cream checks were larger than usual. Plaintiff also admitted the receipt of two-thirds of the crop in 1911, but contended the same was to compensate him for hay he had furnished to the deceased. The jury found for plaintiff in the sum of $1,700.

John H. McNary and Jas. G. Heltzel, both of Salem (McNary, McNary & Keyes, of Salem, on the brief), for appellant.

W. C. Winslow, of Salem (V. A. Goode, of Stayton, on the brief), for respondent.

McCOURT, J. (after stating the facts as above).

At the conclusion of the taking of testimony in the case the defendant moved the court to return a verdict for the defendant, for the reason that plaintiff had failed to introduce any evidence tending to show that a contract existed between plaintiff and Nicholas Lambert, deceased, for the performance or payment of the services set forth in the complaint. Defendant sought by this request to have the court apply to the evidence the rule that services performed by one member of a family or household for another are presumed to be rendered gratuitously, and that compensation therefor cannot be recovered unless an express contract to pay for the same is shown, or circumstances from which it appears that payment therefor was intended and expected to be made in some manner. Wilkes v. Cornelius, 21 Or. 341, 347, 23 P. 473; Bennett v. Stephens, 8 Or. 444; Ingram v. Basye, 67 Or. 257, 135 P. 883.

The rule mentioned does not apply in this case, as there was evidence to support the allegations of plaintiff's complaint that an express contract was made by the decedent to pay for the services for which recovery is sought.

Defendant requested the court to instruct the jury that plaintiff could not recover for any services performed by himself for the decedent prior to February, 1904, and that he could not recover for any services rendered by his wife to the decedent claimed to have been performed prior to October, 1911, the date set forth in the claims presented to the administrator as the commencement of the services respectively of plaintiff and his wife.

Plaintiff alleged in his complaint that the services which he performed for decedent commenced in February, 1898, and that the services performed by his wife commenced in October, 1906 and evidence was offered to establish the beginning of the respective services as of these dates. Defendant contends that the evidence, so far as it tended to prove services performed prior to the dates set forth in the claims, referred to services not embraced in the claims, and that it was error for the court to permit the jury...