Cowan v. Musgrave

• Decision Date: 12 December 1887
• Citation: 35 N.W. 496,73 Iowa 384
• Parties: COWAN v. MUSGRAVE, EX'R, ETC.
• Court: Iowa Supreme Court

73 Iowa 384

35 N.W. 496

COWAN

v.MUSGRAVE, EX'R, ETC.

Supreme Court of Iowa.

December 12, 1887.

Appeal from district court, Harrison county; G. W WAKEFIELD, Judge.

This is an action by Agnes J. Cowan to recover for work and labor alleged to have been performed by her for Richard Musgrave, deceased, of whose estate the defendant, George Musgrave, is executor. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.L. R. Bolter & Sons, for appellant.

S. H. Cochran, for appellees.

ROTHROCK, J.

1. The plaintiff is a daughter of Richard Musgrave, deceased. She claims that she attained her majority in the year 1859, and was at that time a member of her father's family; that she continued to be a member of the family until September, 1884, and that during all that time she worked and labored continuously for her father, performing nearly all of the household duties, including the washing, making, and mending, caring for her father when ill, and, in addition thereto, fed the stock, consisting of cattle, horses, and hogs, both in winter and in summer, and frequently, and mainly with her own hands, prepared the fuel necessarily used in doing the cooking, and warming the rooms in which she and her father resided; that decedent frequently told plaintiff that he would pay her a reasonable compensation for her services, but the exact dates of said promises she is unable to state; that decedent expected to compensate plaintiff, and that plaintiff expected compensation for her services, and relied thereon during the entire time she worked for decedent as aforesaid. The defendant denies the averments of the petition generally, and especially those relating to the alleged contract for payment for the alleged services, and averred that plaintiff lived with decedent as a member of his family, and was clothed and supported by him, and did not expect payment for her services, and that decedent neither promised nor expected to pay the plaintiff anything for her services. Defendant also pleaded the statute of limitations.

The evidence taken upon the trial shows quite conclusively that the plaintiff performed the service as alleged; that she was a most diligent and faithful laborer, both in the house and field; and a number of witnesses testified that the decedent had stated to them during the time that the service was being performed that he would provide or recompense or pay the plaintiff for her labor. Some of these declarations appear to have been to the effect that provision would be made for the plaintiff for her labor in the final disposition of the decedent's estate; but other statements of a purpose to pay do not appear to have reference to that event. The plaintiff was a witness in her own behalf, and her counsel asked her to state the kind of work she performed for her father, and whether she expected compensation therefor. The questions were objected to, and the objections were sustained. The plaintiff claims that these rulings were erroneous. We do not understand counsel to claim, in argument, that it was competent to prove by the plaintiff that she expected compensation for her labor. There can be no question that she could not be allowed to give evidence which would tend to prove a contract between herself and her father, the action being against his executor, (Code, § 3639;) and we think that evidence of the kind and character of work done should be regarded as coming within the prohibition of the statute. Such appears to have been the rule announced by this court in Peck v. McKean, 45 Iowa, 18. We think these rulings of the court were correct.

2. Richard Musgrave made a will in the month of June, 1885, and after the plaintiff had left home and married. The defendant offered the will in evidence, and it was admitted as such, over the plaintiff's objection. It appears from the will that the testator bequeathed to each of his children, including the plaintiff, the sum of...