Gauss v. Trump

Citation135 P. 910,48 Mont. 92
PartiesGAUSS v. TRUMP.
Decision Date11 October 1913
CourtUnited States State Supreme Court of Montana

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.

Action by John Gauss against Louise C. Trump, as administratrix with will annexed of Olive Ahrens, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

George T. Baggs, of Stevensville, and Tolan & Gaines, of Missoula for appellant.

O'Hara Edwards & Madeen, of Hamilton, for respondent.

SANNER J.

The complaint of respondent alleges in substance that about May 15, 1906, he entered into an oral contract with Olive Ahrens now deceased, in and by which it was agreed that he should perform work and labor in the care and management of her ranch during her lifetime in consideration that she should furnish him food, clothing, and other necessaries of life and that she should devise her said ranch property to him at her death; that he thereupon entered upon the duties thus imposed upon him and continued to discharge them until her death on December 14, 1910, and fully performed the contract on his part; that in March, 1910, "the said agreement was by mutual consent so modified that he, instead of receiving each year an unliquidated sum as and for necessaries under said agreement, took a lease of the premises which provided that he should receive one-half of the proceeds thereof, which was executed in lieu of the provision in said agreement for necessaries"; that his services rendered to her under the agreement were of the reasonable value of $75 per month, or $3,450 in all, no part of which has been paid; that Olive Ahrens died testate, but her will, which was duly admitted to probate, contained no devise or bequest whatever to him; "that hereafter, and after publication of notice to creditors of the estate of the said Olive Ahrens, deceased, had been made and before the time in said notice specified for the presentation of claims against the said estate had expired, and on or about the 19th day of September, 1911, the plaintiff * * * presented his claim for the reasonable value of the services aforesaid, * * * duly verified, * * * to the defendant herein as administratrix, * * * which claim was rejected; that thereafter, and on or about the 7th day of October, 1911, and before the time for presentation of claims against the said estate had expired," the plaintiff presented an amended statement of his claim, duly verified, which claim received no action on the part of the administratrix, though more than ten days have elapsed.

The answer admits that in the will of Olive Ahrens there is not any devise or bequest to plaintiff, that plaintiff presented his claim on September 19, 1911, which was rejected, that he presented his amended claim on October 7, 1911, and that more than ten days have elapsed since said presentation; alleges that if plaintiff ever did any work for Olive Ahrens he has been fully paid for the same, and that in the will of Olive Ahrens it is stated that the reason she makes no special bequest to him is because she feels that she has provided for him as much as the situation demands. Otherwise than as above set forth, the answer denies all the allegations of the complaint and also pleads a counterclaim upon a promissory note for $100, given by the respondent to Olive Ahrens on November 24, 1909. The reply admits the execution of the note but otherwise denies all the allegations of new matter contained in the answer.

The cause was tried to the court sitting with a jury, and the verdict was for the respondent, upon which judgment was entered to the effect that respondent "have and recover from said Louise C. Trump, as administratrix," the sum of $3,694.50, with costs amounting to $105.50. Appellant made and presented her motion for new trial, which was denied, and from the order denying a new trial, as well as from the judgment, she appeals.

But three questions are presented, viz.: Does the complaint state a cause of action? Does the evidence support the verdict? Is the judgment valid in form? Of these in their order.

1. The burden of the attack upon the complaint is that the action is under a special statute authorizing suits to vindicate rejected claims against estates; that the plaintiff must in every such case bring himself within the statute by appropriate averments to the effect that his claim was presented in time; that the complaint does not show this, the allegations relative thereto and quoted above being mere conclusions instead of direct allegations from which the necessary conclusions might be drawn by the proper authority. The cases cited by counsel all hold that conclusions of law are ineffective for any purpose in pleading--a proposition indisputable and last enunciated by this court in Ridpath v. Heller, 46 Mont. 586, 129 P. 1054--but that a claim was presented within the time prescribed in a notice is a clear matter of fact implying proof of the time of presentation as well as of the notice and its terms, leaving the determination of the legal effect to the court. It may be conceded that the allegation in question is not in the best possible form, but it is an obvious attempt to state the fact in its ultimate, issuable aspect and at most is an inference rather than a conclusion of law. Argumentative and inferential averments are, it is true, as obnoxious to good pleading as are conclusions of law, but their value is not the same. Conclusions of law, unsupported by the essential averments of fact, are always ineffective; but, as against an attack for lack of substance, the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties (Rev. Codes, § 6566), and whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred. County of Silver Bow v. Davies, 40 Mont 424, 107 P. 81. Where the inferential allegations of a pleading are not attacked by special demurrer or motion, as may be appropriate, we know of no modern authority which denies the right of the pleader to make proof under them; and that such an allegation as the one before us will support proof was intimated in Jones v. Rich, 20 Mont. 289, 50 P....

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