Clark v. West

• Decision Date: 20 April 1903
• Citation: 73 S.W. 797
• Parties: CLARK v. WEST et ux.
• Court: Texas Supreme Court

73 S.W. 797

CLARK v. WEST et ux.

Supreme Court of Texas.

April 20, 1903.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by J. R. and Louisa West against G. W. Clark. There was a judgment for plaintiff, affirmed on appeal to the Court of Civil Appeals (72 S. W. 100), and defendant brings error. Reversed.

Parker & Carlton and Martin & George, for plaintiff in error. Daniel & Keith and Eli Oxford, for defendants in error.

BROWN, J.

J. R. and Louisa West, husband and wife, sued G. W. Clark in the district court of Erath county to recover the value of services rendered by Louisa West to Clark and his wife while living in their family, extending from her early childhood until her marriage. The honorable Court of Civil Appeals failed to file conclusions of fact in this case, and we make the following statement from the undisputed evidence as we find it in the record:

G. W. Clark and L. C. Clark were husband and wife and without a child, living in Jack county, Tex. Louisa Hetchcock was then of the age of about 2 years and 6 months, living from place to place in the neighborhood. Mrs. Clark took the child to her house, and kept her for about six months, when she was taken by a half sister of Louisa, who, after keeping her for a short time, returned the child to Mrs. Clark. Louisa continued in the family of defendant Clark by the consent of her father, who was about 75 years old and quite poor, until she was about 12 years old, when Clark and his wife, having removed from Jack county to Erath county, took the girl Louisa to see her father, and again obtained his consent to keep her in their family. Louisa continued to live in the family of Clark and his wife until she was 24 years old, at which time she married J. R. West. During her stay she was clothed and cared for by Clark and his wife as people in their circumstances ordinarily care for their children, and it seems from the testimony that there was entire harmony and agreement between her and Clark and his wife. When Louisa was about 18 years old, to wit, the 30th day of June, 1900, Clark and his wife adopted her in due form as prescribed by the statute. Afterwards Mrs. Clark made a will in which she gave Louisa one dollar, and the remainder of her property she gave to others.

In their petition the plaintiffs claim, in substance, that Clark and wife agreed with the father of Louisa, and with her after she had attained years of understanding, that "if she would live with them as their child they would adopt her and take her to their home, would educate and maintain her, and fix things so that she would get their property at their death, the same as if she was their child; that they would either adopt her or will their property to her." The allegations were denied by the defendant in so far as they related to the agreement made between the parties.

The Court of Civil Appeals copied into its opinion the evidence of Louisa West as constituting their finding of fact, which is as follows: "When I was twelve years old, Clark and wife took me back to Jack county to see my father, and when we got there my father wanted me to stay with him, but Clark and wife told my father, and agreed with him, that if he would allow me to go back with them, and let them keep me as their child, that they would in some way fix things so that I should have their property at their death; that they would either adopt me or will their property to me; that they would make me their heir." Clark testified, denying any agreement with Louisa or her father.

Upon the trial in the district court the judge charged the jury as follows: "Now, if you believe and find from the evidence in this case that at the time G. W. Clark and his wife took plaintiff Louisa West to see her father in Jack county, Texas, the said defendant and his wife jointly agreed with plaintiff's father that if he, the father of plaintiff, would permit plaintiff Louisa West to return home with defendant G. W. Clark and his wife, and remain with them and work for and perform services for them as their own child till she, the said plaintiff, was grown, and until she married, that they, the said defendant and wife, would adopt her; * * * and if you further believe and find from the evidence in this case that by virtue of this agreement, or agreements, if any, or of said conduct and language, if any, of the said defendant G. W. Clark, that the said plaintiff Louisa West was induced to remain and perform services for the said G. W. Clark and his wife until she, the said Louisa West, was twenty-one years old, and until she married; and if you further find and...