Gray v. Cheatham, 7717.
| Decision Date | 29 June 1932 |
| Docket Number | No. 7717.,7717. |
| Citation | 52 S.W.2d 762 |
| Parties | GRAY v. CHEATHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Coleman County; E. J. Miller, Judge.
Action by Mrs. I. P. Cheatham against S. H. Gray, administrator of the estate of F. C. Groves, deceased. From a judgment in favor of plaintiff, defendant appeals.
Reversed and remanded.
W. Marcus Weatherred and Critz & Woodward, all of Coleman, for appellant.
Dibrell & Starnes, of Coleman, for appellee.
Appellee sued appellant, S. H. Gray, administrator of the estate of F. C. Groves, deceased, for $4,700, as the reasonable value of her services for nursing and caring for the said F. C. Groves and his wife from July 1, 1928, to the death of Mrs. Groves, February 13, 1930, and to the death of Mr. Groves, January 27, 1931; or for 970 days at $5 per day, which was alleged to be the reasonable value of the nursing services rendered. The jury found that $2,250 would "reasonably compensate plaintiff for the nursing services rendered," and judgment was accordingly rendered for appellee; hence this appeal.
In substance, appellee alleged that F. C. Groves employed her as housekeeper, first at $1 and later at $2 per day and board and lodging; and as nurse for his wife, an invalid, and himself, practically an invalid, agreeing to convey or leave by will his homestead if not all of his property to appellee, if she would nurse them until their respective deaths, as compensation for such nursing services; that she, in good faith and in compliance with the oral agreement, rendered the nursing services; that F. C. Groves failed to convey or leave by will the homestead or any part of the estate to appellee; and that because of the breach of his oral contract to do so F. C. Groves became liable to appellee for the reasonable value of the nursing services rendered.
The general demurrer and special exceptions to the petition that the contract alleged was within the statute of frauds (Rev. St. 1925, art. 3995), and that the petition did not sufficiently identify the property to be conveyed or devised to appellee, and that a part of the alleged services were shown on the face of the petition to be barred by the two-year statute of limitation (Rev. St. 1925, art. 5526), were properly overruled. The decisions in Stevens v. Lee, 70 Tex. 279, 8 S. W. 40; Jordan v. Abney, Adm'r, 97 Tex. 296, 78 S. W. 486; Raycraft v. Johnston, 41 Tex. Civ. App. 466, 93 S. W. 237; Von Carlowitz v. Bernstein, 28 Tex. Civ. App. 8, 66 S. W. 464; Henderson v. Davis (Tex. Civ. App.) 191 S. W. 358; Roberts v. Carlisle (Tex. Civ. App.) 287 S. W. 110, establish the rules controlling this case as follows:
(a) That although a parol contract for conveyance of land for services to be rendered may not be enforced, an action may be maintained to recover the value of services performed under it in good faith, and in reliance upon the oral agreement. (b) That the petition in the instant case specifically described the homestead promised to be conveyed or willed; but if it had not the petition is good under the allegation that the deceased promised to convey as remuneration for the nursing services a part if not his entire estate. (c) That the statute of limitation against the claims for such services does not begin to run until a renunciation of the agreement; or, as applied to this case, until the death of F. C. Groves revealed his breach of the oral agreement to remunerate appellee by leaving to her his home, or all of his estate.
Appellant's fifth proposition relating to improper argument of counsel for appellee presents reversible error. The material parts of the bill of exception read as follows: "* * * While Mr. J. D. Dibrell, Jr., attorney for the plaintiff, was making his closing argument to the jury he stated to the jury in substance and effect that when the plaintiff offered her testimony as to what her contract and conversation was with the deceased, F. C. Groves, the defendant objected because the lips of the deceased were sealed; which said statement was made without any argument or statement on the part of the defendant's attorneys to call for or provoke the same and in...
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