Gordon v. Gordon

• Decision Date: 06 June 1884
• Docket Number: 11,158
• Citation: 96 Ind. 134
• Parties: Gordon v. Gordon
• Court: Indiana Supreme Court

96 Ind. 134

Gordon v. Gordon

No. 11,158

Supreme Court of Indiana

June 6, 1884

From the Madison Circuit Court.

The judgment is affirmed, with costs.

J. W Sansberry, M. A. Chipman and J. W. Sansberry, Jr., for appellant.

H. D Thompson and T. B. Orr, for appellee.

OPINION

Zollars J.

Action by appellee against appellant, for work and labor, and for boarding and caring for the mother of the parties. Following the statements of the ground of liability, and that a bill of particulars is filed with the complaint, is the statement "Leaving due and unpaid two hundred and thirty dollars," etc. This sufficiently shows that the amount of the several items is due and unpaid. It would be a forced and unnatural construction to confine the declaration to the last item mentioned in the complaint.

The evidence shows that at the time appellant employed appellee to render the service, a writing was executed. This is called by counsel and witnesses a written contract. After appellee had rendered most of the services for which a recovery is sought in this action, he surrendered the paper to appellant, with a statement that he could render no further services under it. To this appellant consented, and, with the acquiescence of appellee, destroyed the paper. The surrender of the paper, with the accompanying statements, put an end to the contract from that time, but it was not such a rescission as to defeat appellee's right to recover for the services already rendered.

The paper, having been thus destroyed, of course, could not be produced in evidence, and hence it was not error to admit oral testimony of its contents, if its contents were material.

From the oral testimony of its contents, we learn that by the writing appellant let to appellee a farm, which belonged to the mother, for one-half of the corn that might be raised, and agreed to pay him for all necessary repairs upon it, and for boarding and caring for the mother.

As to how long the contract should exist, the kind and extent of the repairs that might be made, the compensation to be paid therefor, and for the care and support of the mother, the paper contained no stipulation. As to all these, the rights of the parties had to be determined by resort to oral testimony. The contract, therefore, was not complete as a written contract. The contract between the parties was partly in writing and partly in parol, which for most, if not all legal...