Eunice Y. Comstock's Adm'r v. Abe Jacobs
| Decision Date | 22 February 1911 |
| Citation | 78 A. 1017,84 Vt. 277 |
| Parties | EUNICE Y. COMSTOCK'S ADM'R v. ABE JACOBS |
| Court | Vermont Supreme Court |
January Term, 1911.
GENERAL ASSUMPSIT. Plea, the general issue. Trial by jury at the June Term, 1910, Orange County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed and cause remanded.
David S. Conant, Frank S. Williams, Stanley C. Wilson and R. M Harvey for the defendant.
Present MUNSON, WATSON, HASELTON, AND POWERS, JJ. ROWELL, C. J., did not sit.
This is an action in general assumpsit. Plea, general issue. The specifications contain three items: one is for the proceeds of a bank book, amounting to $ 811.93; one, for cash received for a fur coat, $ 40.; and one, a reasonable sum for the work and labor of Eunice Y. while living in defendant's family. The plaintiff offered evidence in support of all these items, but the last one was neither argued nor submitted to the jury.
It appeared on the trial that the plaintiff Sanborn was also administrator of the estate of Jackson R. Comstock, the late husband of Eunice Y., and as such had brought a suit in general assumpsit against the defendant, the same being now pending; that the two intestates were old people and about March, 1907, went to live with the defendant and his wife, the latter having been brought up by them from three years of age, and having lived with them until, and for some time after, her marriage; that prior to going to live with the defendant, each of the intestates had some property: Eunice Y. a deposit in a bank of about $ 800, and Jackson R. a farm worth $ 1100, about $ 700 in a bank, and some chattels of no great value; that prior to the same time the farm was sold and the proceeds thereof, together with the money in the bank belonging to Jackson R., and all his chattels, were turned over to the defendant, as was also the bank book of Eunice Y., under a contract made by him with both of the intestates together, whereby he was to support and provide for them during their natural lives and give them a Christian burial. The defendant's evidence tended to show that ever thereafter all the money, bank books, and chattels so turned over to him remained in his hands and possession as his own property, neither of the intestates handling any part thereof; and excepting in this way there was no evidence that defendant ever received anything for such care, support, and burial. The bank book of Eunice Y. was not formally assigned until about December 5, 1908, at which time or soon after defendant drew the money thereon from the bank and used it as his own. The plaintiff's evidence tended to show that this book was not in the defendant's hands and possession as his own property, and that it was formally assigned to him for the purpose of investment for the assignor; that the intestates went into defendant's family as boarders only; but no evidence was introduced tending to show any price agreed upon, asked, or received for care and support under such arrangement. It appeared that the intestates lived with the defendant and his family until their deaths, and that the defendant supported and cared for them and paid their funeral expenses; that when they went there to live, Jackson R. was old and feeble, and his wife was bedridden, suffering from a broken hip and other infirmities, remaining an invalid as long as she lived; that they treated the defendant and his wife as their son and daughter, and by them were called father and mother and always treated as such, the defendant's wife in fact never knowing any other parents. The defendant's evidence tended to show that when the intestates came into his family, they had no children or near relatives with whom they could live; that Jackson R died in August, 1908, and Eunice Y. in October, 1909.
The plaintiff, in his opening case, called the defendant as a witness and examined him at length relative to the contracts made by him with Jackson R. and with Eunice Y., under which he received all of their property, and also as to the amount of money and property he received from the latter in her lifetime. Defendant offered to show by his own testimony in defence what the contract was under which Eunice Y. came to live with him, and that he fulfilled it in every particular. The offer was excluded and an exception saved. The bill of exceptions states that defendant had before testified as to the arrangement he made with her in reference to her support. Yet the bill also states that the defendant claimed and his evidence tended to show a contract made by him with both of the intestates together, under which all of the property of the two became his in consideration of their care, support, and burials, by him; and the bill does not state that defendant had before testified as to what this contract was. As the case then stood the defendant was competent to testify, and the exclusion of the offered testimony was error. The plaintiff, by calling the defendant as a witness and examining him, as he did, waived the statutory incompetency and, irrespective of the provisions of No. 64, Laws of 1908, made him competent as a general witness in the case. Cowles v. Cowles' Estate, 81 Vt. 498, 71 A. 191; Dee v. King, 77 Vt. 230, 59 A. 839, 68 L.R.A. 860; Paine v. McDowell, 71 Vt. 28, 41 A. 1042; Ainsworth v. Stone, 73 Vt. 101, 50 A. 805; Linsley v. Lovely, 26 Vt. 123; State v. Slack, 69 Vt. 486, 38 A. 311; White v. Dow, 23 Vt. 300. Inasmuch as this holding is broader in effect than the law of 1908, to which reference has been made, we need not consider the scope of that act.
The defendant offered to show that the specifications filed by the plaintiff in his suit as administrator of Jackson R. Comstock's estate against the defendant contained as one item of recovery the same fur coat named in the specifications in the case at bar, which offer was excluded. This was not error. If the property of both intestates went into the hands and possession of the defendant under an arrangement made with them jointly, it cannot be said from anything before us that the common administrator, when bringing the two suits, knew to which intestate the coat belonged. Hence the mere fact that such item was put into the specifications in the other suit affords no basis for an inference against the ownership of the intestate in this case. "The only presumptions of fact which the law recognizes are immediate inferences from facts proved. " Manning v. John Hancock Mutual Life Ins. Co., 100 U.S. 693, 25 L.Ed. 761.
During the plaintiff's examination of the defendant in the opening case the question was asked whether he received the money represented by the bank book, "which was the property of Mrs. Comstock, Eunice Y." Objection was made to the question because it assumed as a fact something not true. Plaintiff's counsel thereupon said: "I asked him if he had received the money." The court said "Let the question stop right there," and he may answer. The plaintiff's counsel then put the question: "Mr. Jacobs, did you actually receive $ 811.93, the property of Mrs. Eunice Y. Comstock?" Objection was made on the ground that the ownership was in dispute. Subject to exception, the witness answered, "I received the...
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