Caswell v. Smith's Estate

• Decision Date: 05 June 1933
• Docket Number: No. 106.,106.
• Citation: 263 Mich. 390,248 N.W. 845
• Parties: CASWELL v. SMITH'S ESTATE.
• Court: Michigan Supreme Court

263 Mich. 390

248 N.W. 845

CASWELL

v.SMITH'S ESTATE.

No. 106.

Supreme Court of Michigan.

June 5, 1933.

Appeal from Circuit Court, Mason County; Earl C. Pugsley, Judge.

In the matter of the claim of Sidney R. Caswell against the estate of Lydia Elizabeth Smith, deceased. From a judgment for claimant on appeal to the circuit court from an order of the probate court allowing the claim, the estate appeals.

Reversed, and new trial granted.

Argued before the Entire Bench.

NORTH, J., McDONALD, C. J., and CLARK, J., dissenting.Mattews, Williams & Von Sprecken, of Ludington (Mattews & Williams, of Ludington, and I. A. Fish, of Milwaukee, Wis., of counsel), for appellant.

A. A. Keiser, of Ludington (F. E. Wetmore, of Hart, of counsel), for appellee.

WIEST, Justice.

Plaintiff presented the following claim against the estate of Lydia Elizabeth Smith, deceased:

‘That on or about the month of July, 1919, the said Sidney R. Caswell was about to remove from the City of Ludington to the City of Detroit where he had an offer of employment at $3,000.00 per year with prospect of advancement, which said offer being communicated to the said deceased, she thereupon agreed to and with the said Sidney R. Caswell that if he would stay with his family in the City of Ludington and continue to render services to the said deceased as he and his family had theretofore done, that she, the said Lydia Elizabeth Smith, would at her death give or leave to said Sidney R. Caswell a sum of money that the interest thereof would amount to the sum of $3,000.00 per year.

‘That relying upon said agreement and assurance of said Lydia Elizabeth Smith, this claimant did not remove to the City of Detroit, but stayed in the City of Ludington and retained his residence in close proximity to the home of the said Lydia Elizabeth Smith, and he and his family continued to furnish services, companionship and comfort to the said Lydia Elizabeth Smith, during the entire remainder of her life and that thereupon the said claimant became and was entitled to have the said contract so made between this claimant and the said deceased fully performed and became and was entitled by reason of his full performance of his contract to have awarded to him a sum of money sufficient that the interest thereon would amount to $3,000.00 per year, which sum would amount to and should be the sum of $60,000.00, which said sum this claimant by this says is due to him by reason of the services so performed by this claimant and his family in performance of the contract heretofore entered into between him and the said deceased.’

Elizabeth Caswell, wife of plaintiff, at the same time, presented her claim against the estate as follows:

‘To services rendered by claimant to the deceased at her request continuously and daily throughout various hours of the night and day as companion, maid, housekeeper and general servant from January 1st, 1912 to the time of the death of the above named Lydia Elizabeth Smith, deceased, on, to-wit, the 30th day of January, A. D. 1930.

‘Said services consisted not only in acting as companion, nurse and maid to the deceased, as aforesaid, but also in keeping in constant readiness at all times of the day and night to render service, of the character described, and other services, and being constantly at the call of said deceased at all times of the day and night assisting her with her housework, cleaning, doing her shopping, helping her in her preparation for parties, combing and dressing her hair, and bestowing upon her personal attention of all and every kind required by her, and in claimant keeping herself near to the telephone where she would quickly and promptly respond to every call made by deceased and by carrying out sundry and divers instructions of said deceased concerning arrangements to be made after the death of said deceased.

‘937 weeks @ $18.00 (a week) per week, $16,866.00.’

Upon appeal to the circuit court plaintiff had verdict and judgment thereon for $60,000, and interest from the date of the death of Lydia Elizabeth Smith. Defendant estate prosecutes an appeal.

At the trial plaintiff called his wife to prove the contract. Objection was made on the ground that her testimony was excluded by the statute, because she was a party to the alleged contract in that her services were contracted for and, therefore, an integral part thereof, and directed the attention of the court to the claim filed by plaintiff and also to the fact that the witness had filed her claim in the probate court for the same services which plaintiff sought to recover for in this case. Thereupon counsel for plaintiff urged that, when the case was here on appeal from summary judgment (Caswell v. Stearns, 257 Mich. 461, 241 N. W. 165), the question was raised, and:

‘If the Supreme Court had considered there was any merit in this proposition, they know how to send a case back and fix it so you can't try it again; and they could have said that in any event, the claim of the defendant would be sustained so far as the testimony of Elizabeth Caswell is concerned.

‘They could have said, this case goes back for a new trial, and if her testimony was incompetent, they would have eliminated it in that decision. Why send it back when it is not the case? It was argued; it was in the brief; it was answered by our brief, and the Court sends it back for a new trial without referring to that at all.

‘Why, we would have to say that the Supreme Court were setting traps for somebody so as to reverse cases. Why send it back for a new trial and allow this testimony to stay in there, when the case would be reversed for allowing it to get in?

‘I say that matter is res adjudicata in this case.’

The court overruled the objection. Mrs. Caswell testified:

‘Well, we were talking to each other over the telephone, and I told her we were going to move away; and Miss Smith came over, and she was all excited when she got to the house and she sat down a few minutes, and she said ‘You cannot go; I want you here; I don't know how I can get along without you’; and Mr. Caswell came in and said ‘Miss Smith, I have been offered a position in Detroit where I will get Three Thousand Dollars a year; there is nothing in Ludington for me; and I have got to move in order to take care of my family,’ and Miss Smith said ‘If you will stay here, I will give you an amount that will bring you Three Thousand Dollars a year in interest.’

‘Q. What did Mr. Caswell say about that, when she told him that? A. Well, he stood there for a few minutes and he did not answer her right away, and he walked out in the other room, and in a short time he came back and said ‘Miss Smith, I will take you up on that, and if you should change your mind at any time, let me know.’'

The witness then detailed the services she rendered Miss Smith. Mr. Caswell was a commercial traveler, was away most of the time, rendered slight personal service, and his wife and children performed the services. Counsel for defendant offered the claim, filed by Elizabeth Caswell against the estate, for the purpose of showing the incompetency of the testimony of Mrs. Caswell. This was objected to, and in the discussion it was stated that, before the commissioners on claims, the following occurred:

‘Mr. Keiser: I have already stated to the Commissioners-I don't know whether it is in the record or not-I do not find it there-it is my position no one would ask for double compensation. We feel that this account is entitled to be allowed in full; and if so, I am satisfied Mrs. Caswell would not press her claim.

‘Mr. Wetmore: My idea is this: That if through some technicality, Mr. Caswell should be held not able to recover anything, that then Mrs. Caswell might possibly recover on quantum meruit, but I will say that if the claim of Mr. Caswell is allowed, there is no question in my mind but what (that) merges into it, the claim of Mrs. Caswell. That has been my idea, and Mr. Keiser and I are in accord on that; that is, if there should be some insurmountable legal difficulty; but if the Caswell claim is allowed, I am satisfied it would bar Mrs. Caswell. Now that is my position.’

And Mr. Wetmore, counsel for plaintiff, said: ‘And that is my position right today.’ Also:

‘But we are not pressing Mrs. Caswell's claim here. Let's take it that way. Let's say this claim was allowed. Two claims for the same services can be filed; and you cannot void one by the other, by any means, and void both of them; and that is what they are attempting to say and do, if they cause Mrs. Caswell's claim, to void the Sidney Caswell contract. * * *

‘* * * If this were for services outside the contract with Sidney Caswell and Miss Smith, then she would be entitled to recover for them, but I think I have barred Mrs. Caswell of ever prosecuting her claim by the statement made here in Probate Court, except this,-Just as I stated there, we made the reservation, if there should be some insurmountable obstacle came in here that prevented Mr. Caswell from recovering, then Mrs. Caswell might recover what her services were reasonably worth.

‘The Court: In other words, if you fail to establish,-your position is, if you fail to establish the contract upon which you rely, then the services rendered by Mrs. Caswell,-then the services rendered might be a subject of quantum meruit?

‘Mr. Wetmore: If Mrs. Caswell had; not Sidney Caswell, because he has exhausted his remedy here in this case. Any judgment here would be res judicata against Sidney Caswell.

‘The Court: He has elected his remedy?

‘Mr. Wetmore: Yes, and it is irrevocably set.

‘The Court: Then her claim would be limited to whatever was not within the scope of the agreement he made?

‘Mr. Wetmore: I think we went further than that. I went further than that, because I say here, and my idea is this: This would not bind Mrs. Caswell; there is no question about that. If I have gone too far and possibly said too much, I would be faced with it if Mrs....