Cook's Estate, In re

• Decision Date: 11 February 1955
• Docket Number: No. 33606,33606
• Citation: 68 N.W.2d 351,159 Neb. 739
• Parties: In the Matter of the ESTATE of Anna COOK, Deceased. Earl COMSTOCK and Anna V. Comstock, Appellees, v. E. H. EVANS, Administrator of the Estate of Anna Cook, Deceased, Appellant.
• Court: Nebraska Supreme Court

Page 351

68 N.W.2d 351

159 Neb. 739

In the Matter of the ESTATE of Anna COOK, Deceased.

Earl COMSTOCK and Anna V. Comstock, Appellees, v. E. H. EVANS, Administrator of the Estate of Anna Cook, Deceased, Appellant.

No. 33606.

Supreme Court of Nebraska.

Feb. 11, 1955.

Syllabus by the Court.

1. The general rule is that where services are rendered by one party for another, and knowingly accepted by him, the law implies a promise on his part to pay what such services are reasonably worth.

2. The opinion of a qualified witness as to the value of the services is admissible to prove such value when his testimony will aid the jury. This question is within the judicial discretion of the trial court to decide, and rulings thereon will not be reversed except in case of manifest error.

3. A motion for a directed verdict challenges the right of the party against whom it is directed to recover in any amount.

E. H. Evans and Baskins & Baskins, North Platte, for appellant.

Hollman & McCarthy, V. H. Halligan and Halligan & Mullikin, North Platte, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This action originated as a claim against an estate for services rendered a deceased person in her lifetime. Claimants are husband and wife, and will hereinafter be referred to as plaintiffs. The administrator of the estate will hereinafter be referred to as defendant. The deceased will be referred to as Mrs. Cook.

The claim was allowed in county court for the sum of $7,140. Defendant appealed to the district court where there was a jury trial resulting in a verdict and judgment for the plaintiffs in the sum of $5,321. Defendant appeals, arguing here that the trial court erred in admitting and allowing the jury to consider the evidence of a witness as to the reasonable value of the services rendered, and in not sustaining a motion for a directed verdict.

We affirm the judgment of the trial court.

Plaintiffs pleaded that during the year 1934 they promised the deceased that they would perform services for her to consist of cooking, sewing, personal care, baking, chauffeuring, carpenter work, and other sundry duties to be requested by her; that deceased promised to pay them in money or property upon her death; that they performed the services requested; and that they sought judgment for the reasonable value thereof.

Defendant answered denying generally and specifically that there was any contract between the parties under which any services were rendered; and alleging that the plaintiffs and deceased were friends and neighbors and that services were exchanged upon a voluntary and gratuitous basis.

Defendant made a motion for a directed verdict at the close of plaintiffs' case-in-chief and again after both parties rested. The motions were overruled.

It is clear from the record that the case was tried on the theory of an implied contract. We are not here dealing with a case involving a family relationship nor with the presumptions that follow from it. We are here dealing with a case involving the general rule that where services are rendered by one party for another, and knowingly accepted by him, the law implies a promise on his part to pay what such services are reasonably worth. Bell v. Rice, 50 Neb. 547, 70 N.W. 25.

We state the evidence insofar as it seems necessary to determine the assigned errors that are argued here.

Plaintiffs are an elderly couple and lived, at all times material here, in and near Hershey in Lincoln County.

Mrs. Cook lived on a farm or farms in that neighborhood. Her family at the beginning of this period consisted of her husband, a married daughter and husband, a sister, and a boy whom she raised and who took the name of Joe Cook. The daughter died in 1934, and no further mention is made of the daughter's husband as a member of the family. Mrs. Cook's husband, who had not been in good health and was elderly, died in 1936. This left Mrs. Cook, her sister, and the boy, Joe, as the family unit. Joe was at the home most of the time until he entered the army during World War II. He returned and became employed in North Platte. It is not shown that there was any particular disturbance in the relationship of Joe and Mrs. Cook.

Mrs. Cook owned, lived on, and managed a substantial irrigated farm. She looked to her tenants and her friends for many services. She repeatedly and almost constantly requested services of the plaintiffs. The evidence contains statements of specific times services were rendered by the plaintiff husband, including driving and furnishing his own car, performing errands, and working about the farm and Mrs. Cook's home at her request. Witnesses testified to similar matters generally as having occurred almost time without number. There is also evidence that Mrs. Cook repeatedly, and on many occasions, would advise plaintiffs that she was coming to eat with them, do so, and then take food to her home; and that she repeatedly asked for and was furnished with prepared food, pastries, etc. There is also evidence of sewing which the plaintiff wife did for Mrs. Cook. There is likewise evidence that Mrs. Cook repeatedly said that she expected to pay, and that plaintiffs would be well paid for what they had done and were doing for her. There is mention of money to be paid to the plaintiffs, of property to be willed to them, and of the purchase of a home for plaintiffs in Hershey. Nothing of this kind was done so far as this record reveals.

Defendant's evidence is corroborative of plaintiffs' evidence so far as services are concerned. It contains statements made by Mrs. Cook that every one who had helped her had been well paid including, either directly or inferentially, the plaintiffs. There is also evidence of one of defendant's witnesses that Mrs. Cook had said plaintiffs had asked her to buy or help them to buy a home in Hershey and that Mrs. Cook did not do it.

Defendant's first argued assignment of error relates to the admission and failure to strike the testimony of a witness for plaintiffs. We accordingly make a more detailed recital of that evidence.

This witness on direct examination testified that he was engaged in the general merchandise and ...