Argued
May 14, 1894
Appeal, No. 19, Jan T., 1894, by defendants, Otto Weber et
al., executors of Theresa Demarra, deceased, from judgment of
C.P. Lancaster Co., Feb. T., 1890, No. 33, on verdict for
plaintiff, Rosalie Gerz, executrix of J. W. Gerz, deceased.
Affirmed.
Assumpsit
for board and services. Before BRUBAKER, J.
The
facts of the case appear by the charge of the court, which
was in part as follows:
"[On
the part of the plaintiff they have endeavored -- and it is
for you to say how successful they have been, and I will be
obliged to leave it to you as a question of fact in this case
-- on the part of the plaintiff, as I say, they have
endeavored to prove to you, that there was an agreement
between these parties for the board, lodging and services
rendered to the decedent, Theresa Demarra.] . . . .
"[The
proof of such agreement, however, cannot be made by loose
declarations of the decedent, nor is the expression of an
intention on the part of the decedent to compensate, evidence
of an agreement; but an admission by the decedent that there
was an agreement or promise made to the claimant to pay for
board and services, would be sufficient obligation on her
part capable of being enforced against her. Is there any
evidence of an agreement to compensate for board and services
in the case now before us, is the main question raised in the
suit here. Had not the plaintiff produced one witness, upon
whose testimony this case, in the mind of the court, hinges
as to the contract or the existence of the contract, that of
Miss Annie Haberbush, a native of Alsace, Germany (the
territory about which there was so much trouble, and which
was taken from France in the war of 1870), and who has
resided here for some time, I would have been obliged to have
given you binding instructions to render a verdict in favor
of the defendant, as requested by the counsel for the
defendant, in a point presented to me, to so charge you.]
"[But
in the latter part of her testimony, which I shall now read
to you from the transcript of the stenographer's notes
so that you may catch it and remember it, there is, in the
opinion of the court, some evidence of an agreement to
compensate or to pay her son-in-law for boarding and services
sufficient to support a recovery in this case. You will
remember that when this case was tried before, her deposition
was taken before alderman Barr, in the city, just a day or
two prior to her visit or return to Alsace, Germany. She was
not produced upon the witness stand here at that time. Her
evidence was not given before the court and the jury in
person. It was brought here in writing, as I say, by her
deposition. At this trial she has been produced upon the
witness stand. You have seen her. She has been sitting here
in court all the week, and you saw her on the stand. She is
apparently a woman of intelligence, a young woman about
twenty-five years of age, who felt more at home in the use of
her own languages, those of France and Germany, than in
English. It appears also that Theresa Demarra was a French
woman; that her native language was French; and that this
witness, Miss Haberbush, was intimately acquainted with her
in fact, she had slept with her, and she had talked with her
frequently in French, and that the conversations she had with
her were in French. In the latter part of this testimony, to
which I will draw your attention, and particularly when she
was severely cross-examined as to what she had said with
reference to her promise to pay, she said she didn't
understand the English language right. I, then, in order to
get at the justice of the case, interpolated myself a
question, and asked the court interpreter, when she
manifested that she could tell it better in German, to
propound the question in German, and it was answered in
German, and that is the latter part of her testimony, to
which I want you to pay attention. I shall read so much of it
as refers to the contract. In the direct examination she was
asked this question: 'Q. Did you ever have any
conversation with her about how she was stopping or boarding
there? A. Oh, yes. She was treated well there. Q. Did she
ever say anything about her going to pay Mrs. Gerz? A. Yes.
She said to me that Rosa was always the best; and she said,
one of these days she was going to pay Rosa well, she said
always to me.' I say to you, that would not be a
contract.
"'Who
was Rosa? A. Mrs. Gerz. Q. You say she had diarrhoea? A. Yes
sir. All the time; and many a time I saw for myself when I
got up in the night time -- I was there and slept with
her.'
"By
the Court: Then upon cross-examination she said: 'Q. You
were examined in this case before? A. Yes sir. Q. Your
deposition was taken, and you testified before the squire in
this case before? A. Yes sir. Q. You testified then that the
old lady said, when she died she would pay Rosa well? A. Yes
sir. Q. Was that the exact language that she used? Is that
exactly what she said? A. Yes sir. Q. Those were the words?
A. Yes. I wouldn't swear false. Q. She said when she died
she would pay Rosa well? A. Yes sir. Q. Where did she say
that? She said it to me. Q. You and she would talk together?
A. Yes sir. Q. You are sure those are the very words that she
used, that when she died she would pay Rosa well? A. Yes sir.
Q. She said nothing more or nothing less? That is what she
said? A. Yes sir. Q. By Mr. Davis: What did she say she was
going to pay Rosa for? A. She promised for the trouble and
everything.'
"Now
if the matter had stopped there, I should have been obliged
to instruct you to find in favor of the defendant, because
there had been no evidence of a contract. It would be merely
an expression of an intention, and it would not be
sufficiently clear to allow that evidence to be submitted to
you for your consideration. But in the latter part of the
cross-examination Mr. Snyder took up the subject again; after
which she was asked by Mr. Brown, as follows: 'Q. You
say, she promised you that she would pay Rosa? A. Yes. She
said to me. Q. Promised you? A. Yes sir. By the Court: Did
she ever say that she was to pay board? A. Yes sir. She said
to me that she was treated well in her place, and one of
these days she wanted to pay her well for her boarding, for
her trouble. Q. Did she say she was to pay it? A. Yes. She
wants to pay it. Q. Did she say who was to pay it? A. Yes.
She wants to pay it. Q. Did she say who was to pay it? A. She
said she had promised to pay it, for her trouble and for her
board. By the Court: Did she say that she promised them or
you? A. Yes. She promised me. By the Court: That she would
pay for the board? A. Yes sir. And all for her trouble. Q.
Did she say she had promised them? A. Yes. Them.' Now the
question is, what she meant by this word 'promised.'
You frequently find that people from the old country,
especially the French and some Germans, use words in a
different sense from our own people. It is for you to say
what she meant when she said, 'Yes. She promised me.'
That is a question for you, and I simply draw your attention
to it. You are familiar with our own Lancaster county Dutch
and you know how they talk, and you know that they very
frequently use odd language in expressing their ideas.
"'By
the Court: Did she say to you she had told them she would pay
them? A. Yes sir. I can't understand it in English right.
I could say it better in German. By the Court: Let the court
interpreter put the last question to the witness in German.
(Question by the interpreter in German.) Q. Did she say to
you (in German), she had told them she would pay them? A.
Yes. She had always said to me she told them she promised to
pay them for her board and her trouble. By the Court: Was
this in German or French? A. French. By Mr. Brown: You never
heard the old woman say anything to them? This conversation
was to you. Was this conversation addressed to her? A. They
were all sitting together. Sometimes she said it to me;
sometimes they were all together when she said it. By the
Court: Who do you mean by "they?" A. Mrs. Goodhart
and Mrs. Gerz and Mr. Gerz, her son-in-law.' That was her
testimony.]
"[The
court is not disposed to take the testimony from you under
the circumstances, nor the fact whether the language given by
her in English or in German shows that there was a promise
an express promise or intention on the part of the decedent
to pay for the board furnished and the services rendered in
this case. I mean by 'intention' an intention of the
parties, no matter what ...
