Edward Lillard Et Ux. v. Wilson, Administrator

• Decision Date: 25 November 1903
• Parties: EDWARD LILLARD et ux., Appellants, v. WILSON, Administrator
• Court: Missouri Supreme Court

77 S.W. 74

178 Mo. 145

EDWARD LILLARD et ux., Appellants, v. WILSON, Administrator

Supreme Court of Missouri, First Division

November 25, 1903

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed and remanded.

John Welborn and Charles Lyons for appellants.

(1) The demurrer to the evidence should have been overruled. Gannon v. Gas Light Co., 145 Mo. 502; Gutridge v. Railroad, 105 Mo. 520; Finch v. Ullman, 105 Mo. 265; McFarland v. Bellows, 49 Mo. 311; Bank v. Simpson, 152 Mo. 638; Healey v. Simpson, 113 Mo. 346; Patton v. Bragg, 113 Mo. 600; Leeper v Bates, 85 Mo. 224; Young v Webb City, 150 Mo 333; McKown v. Craig, 39 Mo. 156; Dowling v Allen, & Co., 6 Mo.App. 195; affirmed, 74 Mo. 13; Gibson v. Zimmerman, 27 Mo.App. 90; State ex rel. v. Goetz, 131 Mo. 179. The evidence shows clearly that deceased expected to pay plaintiffs for their care and attention, for no one more than he recognized the drugery that Bettie Lillard went through with for him, and he not only told Dr. Richart that he wanted Bettie Lillard well paid, but further requested Dr. Richart to send a notary and have him come "over and fix up the papers, that he wanted to give Ed and Bettie some land." Gerz v. Demarra, 162 Pa. St. 530; Morton v. Rainey, 82 Ill. 215; Estate of Kessler, 87 Wis. 660; Price v. Price, 34 Am. Dec. 608; Martin v. Wright's Adm'rs. 28 Am. Dec. 468; Robinson v. Raynor, 28 N.Y. 494. (2) The court committed error in excluding the paper signed by W. C. Lillard in the presence of witnesses. Guenther v. Birkicht's Admr., 22 Mo. 448; Hart v. Hart, Admr., 41 Mo. 442; Voerster v. Kunkel, 86 Mo.App. 194; Cowell v. Roberts, Ex., 79 Mo. 218; Kock v. Hebel, 32 Mo.App. 103. In this case the instrument offered in evidence and excluded by the court was given to deceased to sign by plaintiffs and was signed by deceased, W. C. Lillard, in the presence of plaintiffs and other witnesses, and the writing clearly shows that W. C. Lillard wanted plaintiffs compensated and was "itself" evidence that deceased did not understand the services were being rendered as an absolute gratuity and without expectation of reward.

S. N. Wilson for respondent.

(1) This is an action at law upon a quantum meruit for services rendered by plaintiffs to W. C. Lillard. The evidence clearly showed that at the time the services were rendered the intestate did not expect or intend to pay therefor, and that plaintiffs did not expect or intend to charge for the same; and there was no evidence of implied contract between said parties; hence no error was committed in giving the instruction to find for defendant. Authorities sufficient are cited in appellant's brief on proposition that services rendered by a son and wife for the father are presumed to be gratuitous, which presumption must be overcome by proof of an express or implied contract that the father was to pay for such services. Baker v. Cunningham, 162 Mo. 143. The following authorities hold that, to prove an implied contract, the intention to pay must have existed at the time services were rendered, and can not be affected by a subsequent change of intention: Guenther v. Birkicht's Admr., 22 Mo. 439; Morris v. Barnes, 35 Mo. 412; Hart v. Hart, 41 Mo. 441; Bittrick v. Gilmore, 53 Mo.App. 53; Kinner v. Tschirpe, 54 Mo.App. 575. The following cases show reversal, or demurrer to evidence sustained, in cases very similar to one here on appeal: Morris v. Barnes, 35 Mo. 412; Cowell v. Roberts, 79 Mo. 218; Erhart v. Dietrich, 118 Mo. 418; Wood v. Land, 30 Mo.App. 176; Louder v. Hart, 52 Mo.App. 377. (2) In an action brought on an implied contract, as in this suit, there can be no recovery by the plaintiffs when their evidence shows existence of an express contract regarding matters in controversy; hence, no error in giving instruction to find for defendants, because the recovery must be on same action pleaded. Cole v. Armour, 154 Mo. 333; Huston v. Lyler, 140 Mo. 252; Clements v. Yeates, 69 Mo. 623; Crobe v. Thomas, 19 Mo. 70; Chambers v. King, 8 Mo. 517; Christy v. Price, 7 Mo. 430; Fourth v. Anderson, 87 Mo. 354 (a suit instituted by a pleading in probate court); Davidson v. Brennemann, 27 Mo.App. 655. (3) The statute of Missouri does not authorize a wife to contract with her husband, but she can contract with any other person. There is a misjoinder of these plaintiffs and uniting of two several causes of action in one action because the evidence in this case shows no express contract between both of the plaintiffs with W. C. Lillard; and no joint contract can be implied under the circumstances of this case. Hence, no error was committed in giving instruction to find for defendant, as the defect not appearing on face of petition could only be reached, as was done, by an answer and demurrer to evidence in case of failure of proof. McCorkle v. Goldsmith, 60 Mo.App. 475; Lindsley v. Archibold, 65 Mo.App. 117; R. S. 1899, sec. 598; Gregory v. McCormick, 120 Mo. 663. (4) The court did not err in excluding from evidence the paper shown at point 2 of appellants' brief: (a) Because said paper was not signed by W. C. Lillard with knowledge of its contents, he being "very deaf" and "not having spectacles," and same was completely impeached by testimony of two attesting witnesses, who say he signed at command of son. (b) And if voluntarily signed, the said instrument was an express contract (if not a will), and its being signed by only one party thereto was invalid and not competent evidence of an implied contract sued on. If said writing named a fixed amount instead of "a reasonable sum" no doubt could arise as to its being a written express contract, but naming an amount at "a reasonable sum" did not change the character of the paper. State v. Hull, 161 Mo. 487. "Testimony completely impeached is no testimony at all," etc. Hook v. Railroad, 162 Mo. 580. "Impossible testimony will be disregarded." Implement Company v. Tower, Ex., 158 Mo. 282; Glover v. Henderson, 120 Mo. 378; Lewis v. Ins. Co., 61 Mo. 538.

OPINION

MARSHALL, J.

The plaintiffs are husband and wife. Edward Lillard was the son of W. C. Lillard and Sarah J. his wife. W. C. Lillard died January 13, 1899, and the plaintiffs exhibited this claim against his estate for services, as nurse, rendered him and his wife, at his request. The claim is for sixty dollars a month from June 2, 1888, to January 13, 1899, aggregating $ 7,200, for nursing the deceased, and for forty dollars a month from January 4, 1893, to January 13, 1899, aggregating $ 1,920, for nursing his wife.

The answer denies all liability; denies that the liability, if any, is to the plaintiffs jointly, and therefore pleads a misjoinder of parties; and avers that on March 1, 1888, the deceased rented his farm, near Concordia, Missouri, to his son, Edward, the plaintiff, for three hundred dollars a year, and upon the agreement that the two families were to occupy the house jointly, each furnishing one-half of the provisions for family use; avers that such rental was renewed from year to year up to the death of the father, at which time it is alleged that Edward owed his father $ 1,225 on account of rent, and $ 300 on account of a note dated January, 1895, and asks judgment for those amounts. The answer also pleads the five-year statute of limitations as to all the claim prior to June 1, 1894.

The case made by the plaintiffs was this: The father rented his farm to his son, Edward, on March 1, 1888, for three hundred dollars a year, and upon the further agreement that the two families should live together in the father's house, but each was to furnish one-half of the necessary provisions. It also appeared that the son paid all the rent that became due. It does not appear whether there was any such note given as is described in the answer, nor, if given, whether it was paid or not. On the 2d day of June, 1888, the father was thrown from a horse and his hip was broken near the socket and he was thereafter a cripple. There-after he suffered also with his kidneys and bowels to such a degree that he lost control over them, and they acted without his knowledge or intention. This trouble was so great at times that, the witnesses say, he had to be attended to like a child. He also suffered with an eczema on his leg, which had to be cleansed, treated and bandaged, often as much as twice a day. He required constant attention in these respects for the balance of his life, running eleven and a half years. He was about eighty-two or three years old when he died. His wife was also old and weak, and suffered with asthma, and was, at times, otherwise sick, and required a good deal of waiting on. When she was able so to do, she assisted in housework to the best of her ability and looked somewhat after her grandchildren, but she was unable to nurse the deceased. Substantially all the nursing of both the old people was done by the plaintiff, Bettie Lillard, as was also all the housework and cooking for both families and for the boarders and the farm hands. It was shown that the deceased many times expressed to his friends and acquaintances and to all with whom he came in contact, his realization of his condition, his appreciation of the invaluable services that his daughter-in-law rendered to him, and his desire that she should be well paid therefor, and on one occasion he asked the doctor who had arranged the affairs of a neighbor of his, and upon being informed, requested the doctor to send the same notary to him, saying he wanted to give some or all -- the doctor was not clear which -- of his land to his son and his daughter-in-law in compensation for the services they had rendered him, in nursing him, but it does not appear that the notary ever came to him, and so, no provision was thus made by him in discharge...