Dunlap v. Allen

• Decision Date: 30 September 1878
• Citation: 90 Ill. 108,1878 WL 10119
• Parties: ALVA DUNLAPv.ROBERT ALLEN.
• Court: Illinois Supreme Court

90 Ill. 108

1878 WL 10119 (Ill.)

ALVA DUNLAP

v.ROBERT ALLEN.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding. Mr. D. MCCULLOCH, and Mr. JOHN MUCKLE, for the appellant.

Mr. CHAUNCEY NYE, and Mr. S. D. PUTERBAUGH, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of assumpsit, by Allen against Dunlap, for work and labor.

On the trial below, the jury returned a verdict in favor of Allen, assessing his damages at $637. A remittitur being entered by Allen for $107.30 of this amount, the court gave judgment for the residue--$590.70. Dunlap appeals to this court, and asks that this judgment be reversed, on the ground that it is not sustained by the evidence.

A careful examination of the evidence has convinced us that it is our duty to reverse this judgment.

Allen appears to have been an unmarried man, without a home, well skilled in his trade of house carpenter, but in poor health, and much addicted to drunkenness. Dunlap was a farmer, in good circumstances financially, residing on his farm several miles out in the country from the city of Peoria. A mutual friendship and confidence, it seems, was entertained between them, and in January, 1868, Allen went home with Dunlap, and, thenceforward, for several years, Dunlap's house was his home. The services rendered during this time, are the subject of the present litigation.

Allen charges Dunlap with--

+-----------------------------------------------------------------------------+
                ¦29 days' work, from January 20 to March 1, 1868, $1 per day,        ¦$29.00  ¦
                +--------------------------------------------------------------------+--------¦
                ¦55 days' work, from March 1 to May 19, 1868, at $2 per day,         ¦110.00  ¦
                +--------------------------------------------------------------------+--------¦
                ¦370 days' work, from May 19, 1868, to January 28, 1871, at $2 per   ¦740.00  ¦
                ¦day,                                                                ¦        ¦
                +--------------------------------------------------------------------+--------¦
                ¦

55 days' work, from January 28 to April 16, 1871, at $2 per¦$110.00 ¦
                ¦day,                                                                ¦        ¦
                +--------------------------------------------------------------------+--------¦
                ¦42 days' work, from August 24, 1872, to January 1, 1873, at $2 per  ¦84.00   ¦
                ¦day,                                                                ¦        ¦
                +--------------------------------------------------------------------+--------¦
                ¦66 days' work, from January 1 to June 1, 1873, at $2 per day,       ¦132.00  ¦
                +--------------------------------------------------------------------+--------¦
                ¦Total,                                                              ¦$1205.00¦
                +-----------------------------------------------------------------------------+
                

He admits he has received from Dunlap $207, which should be credited on his account.

From Allen's evidence, alone, but little doubt can be entertained that the first two and the last three items of his account are destitute of merit. As to the first two, he says, “I made no entries in my book prior to May 3, 1868; I calculated five days in the week before that time. If he had settled with me, I did not intend to charge him for that time; would not have charged him if I had left on 1st of March. And again: “During that time,” i. e. between the 1st of March and 19th of May, 1868, “I made out an account for 55 days' work, which account I made out when I brought this suit. Never made up my mind to charge him with that work till I brought this suit.” In his memorandum book, he made, as he says, at the time, this entry, which he intended as the truth: “I, Robert Allen, commenced working for Mr. Alva Dunlap, this date, on house and barn, May 19, 1868.”

It is also shown that, during this time, Dunlap furnished boarding, lodging and washing for Allen; and the evidence of Dunlap and others, as to what Allen did during the time, shows that it was but an inadequate compensation for his boarding, lodging and washing.

As to the last three items, Allen says he charged everything up to the 12th of February, 1869. “I left about the middle of February, 1869.” After that, he returned from time to time, and worked as occasion required. But he says, “I quit charging him in 1871, but kept on at work.” If he quit charging him then, it was evidently not designed that he should be paid.

Dunlap says, “he (Allen) left us about the 11th of February, 1869, about the time we moved into the house. He came back on the 17th of March; I told him we should not do anything more at the house, except to put up porches; that he might make it his home, but I did not propose to hire him; I never employed him afterwards to work or do anything, or any other arrangement.”

That Allen, after this, understood that what he did for Dunlap was only in compensation for board, lodging, etc., is fully shown by other evidence.

Wm. Knight, a brother-in-law of Dunlap, whose deposition is in the record, says, “Allen made his home at Mr. Dunlap's during my last visit there. He said to me that after the close of the war he had no home, and Mr. Dunlap furnished him one. He said he did not expect any pay, and only worked when he felt like it. The conversation I had with him occurred during the months of July, August and September, 1869.” He further says that Allen was in the habit of drinking, sometimes to excess. On cross-examination, he says he saw Allen nearly every day for two months, and all the information he had in regard to Allen's position he got from Allen himself.

William Irwin testified that he went to work for Dunlap in May, 1869. Allen told him that, “Dunlap had offered him a home there, and that he should not charge him for what work he did after they got through with the house; that he had been very kind to him and offered him a home, and taken care of him while he was sick, and he should do odd jobs, and they would not cost Dunlap anything.” He says, “this conversation took place in 1869; I understood him that he was not to charge anything after the carpenters got through working on the house.”

William Dunlap, son of defendant, says, “After the house was finished, Allen worked in the way of odd jobs; he worked when he felt like it, and there was no time to go by.” He told witness he expected to make Dunlap's house his home. “Allen said, ‘I go to bed when I want to, and get up when I want to; I am working here, have a home here, and expect to live here, and don't expect to charge anything for my work.”

Heywood testified, that, in the spring of 1875, he had a conversation with Allen in which Allen said he had...