Gill v. Staylor

• Decision Date: 13 June 1901
• Citation: 49 A. 650,93 Md. 453
• Parties: GILL v. STAYLOR.
• Court: Maryland Court of Appeals

49 A. 650

93 Md. 453

GILL v. STAYLOR.

Court of Appeals of Maryland

June 13, 1901

Appeal from superior court of Baltimore city; John J. Dobler, Judge.

Action of assumpsit for wages by John Staylor against Roger T. Gill as administrator of the estate of Catherine L. Staylor deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PEARCE SCHMUCKER, and JONES, JJ.

William S. Bryan, Jr., and R. Lee Gill, for appellant.

Charles Morris Howard, Francis P. Curtis, and Thomas F. Brady, for appellee.

PEARCE J.

This is an action of assumpsit by John Staylor against Roger T. Gill, administrator of Catherine Staylor, to recover for 13 years of continuous service rendered her. Issues were joined upon pleas that neither defendant nor his decedent were ever indebted as alleged, nor ever promised as alleged; that the action did not accrue within three years before suit brought; and that the assets of the estate are not sufficient to pay all the decedent's debts, regard being had to alleged debt of the plaintiff. Mrs. Staylor's husband was a butcher, and the plaintiff was his nephew, and learned his trade with him. After his death, in November, 1885, Mrs. Staylor continued the business, which was carried on for her by the plaintiff and her brother Albert W. Lutz. There was no dispute as to the rendering of any of the services alleged; the only questions being as to the compensation, and whether full payment had been made. The plaintiff was permitted to testify on his own offer without objection, and he swore that he worked for Mrs. Staylor uninterruptedly from July 5, 1886, to October 14, 1899, during all of which period he received his board from her, but no money whatever for his services; and it is a singular feature of the case that he was absolutely silent as to any agreement or understanding, express or implied, for any compensation for his services. He testified, however, that in the interval between his uncle's death and his going to work for Mrs. Staylor he rendered similar services to one Courtney, and received from him his board and $5 per week; and one Krout, who worked there with him, testified that Staylor showed him two letters from Mrs. Staylor, asking him to return and work for her, and promising him the same wages he received from Courtney, which Krout says were fair wages for the work. Maggie Donovan, who lived with Mrs. Staylor from 1886 to 1890, testified that she heard Mrs. Staylor tell John he was to get five dollars a week, and that she also told John in her presence that Maggie and John at her death would get what belonged to her, for working for her and attending to her. Mrs. Edwards and her sister, cousins of Mrs. Staylor's husband, testified that they heard her say in 1898 that she had willed everything to John, but that they knew nothing about any wages he was to receive. Mrs. Lafferty, who was a neighbor of hers for many years, heard her say that at her death everything she had would go to John and Maggie. John McKuen heard her say on several occasions that when she died the business and the house would be John's, and that she was saving his money for him. These and several other witnesses who testified to plaintiff's services and their reasonable value, without any knowledge of the terms on which he was employed, were produced by the plaintiff, and at the close of plaintiff's testimony the defendant offered two prayers,--one, that there was no legally sufficient evidence to establish a contract, implied or expressed, between the plaintiff and Mrs. Staylor; and one, that there was no legally sufficient evidence to entitle the plaintiff to recover,--both of which were rejected, and their rejection is the ground of the first exception. Neither in the brief nor in the oral argument was this exception alluded to, and we may therefore presume it was abandoned, but it is, in any event, obvious from the recital of the testimony we have given that there was no error in this ruling.

The fourth exception was taken to the asking and answering of a question permitted by the court, as to whether the Knights of Pythias, of which the plaintiff was a member, was not virtually an insurance society. The relevancy of such testimony is not apparent, nor is the injurious consequence of its exclusion apparent, assuming it to be admissible upon any theory of the case; and we shall not pause, therefore, to consider it.

The second and third exceptions were taken to the refusal to permit the defendant to read in evidence from a memorandum book entries by Mrs. Staylor of payments made to the plaintiff on account of his wages, which offer was twice made and refused. These exceptions will be considered together. Lutz testified for the defendant that Mrs. Staylor was his sister, and that he was employed by her in her business from 1887 till her death, in 1899; that she agreed to pay him, and did pay him, five dollars a week, without board; that the plaintiff was to receive three dollars per week, with board that he knew his sister's handwriting anywhere; that he and his sister settled up every week of their lives, and plaintiff was present at these settlements. Lutz was then shown a memorandum book in lead pencil, containing entries of regular payments of three dollars each, alleged to have been made by Mrs. Staylor to the plaintiff from June 1, 1894, to July 5, 1899, and Lutz testified that these entries were in the handwriting of his sister. There was no heading of these entries with the name of plaintiff, nor anything on the face of the writing to show to whom the payments were made. At this point in the testimony of Lutz the offer was first made and refused; and, as he had in no manner connected the plaintiff with these entries by his testimony, we think the offer was properly refused at that time. Continuing his testimony, however, Lutz said: "Every Tuesday was our settling day. John Staylor would be at my right side, and Mrs. Staylor would be sitting down, just settling up the business for the week. He [John] never missed a time getting paid, to my knowledge. She always paid him with $3, and he would be sitting there, and would take it. All was dotted down on that book at the time we settled. Every week Johnny got $3 and his board. I was in contact with John Staylor every day, and every hour in the day. He never said a word to me about any charges he intended to make. The last time I saw a payment by Mrs. Staylor to John was three weeks before she died." The defendant then produced five witnesses whose testimony tended to prove that John Staylor had agreed to work for Mrs. Staylor for three dollars a week and board, and some of these testified they had seen these wages paid at various times, and entered by Mrs. Staylor in a book; and the defendant then renewed his offer to read these entries to the jury, which was again refused. It is, of course, clear, both upon principle and authority, that entries made by a party himself, charging another, are not admissible as evidence per se. Such entries stand upon a different footing from those made by a clerk or other person in the ordinary course of business, and contemporaneously with the transaction; and in Romer v. Jaeksch, 39 Md. 589, it was observed that, though Mr. Greenleaf says in his work on Evidence (volume 1, § 118) that in the United States this principle has been carried further, and extended to entries made by the party himself in his shop books, yet this extension of the doctrine has not been sanctioned in Maryland, where the rule of the common law in this respect has not been departed from. But we think the evidence was admissible on a principle of a distinct character. Lutz had testified that he had seen the weekly payments of three dollars for wages made to plaintiff by Mrs. Staylor, and entered at the time in a book in her handwriting. If a book containing such entries in her handwriting can be produced, it is certainly strong corroboration of Lutz's testimony, and the appellant contends that these entries are admissible for that purpose. In Digby v. Stedman, Esp. 328, the plaintiff had delivered to the defendants a watch for repairs; and while in their hands he sold it, and gave the purchaser an order for its delivery. In an action for trover, defendants claimed that they had delivered it pursuant to plaintiff's order, but the purchaser swore that he had never received it. It was proved by defendants' shopman that he had himself seen the watch delivered to the purchaser; and the defendants' shop books were then offered, in which was an entry of such delivery in the handwriting of one of the defendants. On objection, Lord Kenyon said: "The entry in the book was brought in to corroborate the testimony of the witness, who had himself seen the delivery; that the entry should be regularly in the handwriting of the witness, but when the entry was made in the handwriting of another, and the witness saw it soon after it was made, and the entry had corresponded with what he had himself then observed, such was tantamount to an entry made by himself, and was therefore admissible." In Cooke v. Curtis, 6 Har. & J. 93, the rule was laid down that, where the credibility of a witness is attacked by the opposite party, his prior declarations may be given in evidence to show his consistency. In Insurance Co. v. Davison, 30 Md. 104, 105, this rule was approved, the court saying: "We are clearly of opinion the testimony was admissible to corroborate Davison, whose credibility had thus been impeached by defendant's witnesses. The ruling falls directly within the decision in Cooke v. Curtis, supra, and the rule of evidence of which that case is an illustration." Here the plaintiff's denial that he had ever...