H. H. Johnson v. Estate of Evelyn Samson
| Decision Date | 05 January 1943 |
| Citation | 29 A.2d 919,113 Vt. 38 |
| Parties | H. H. JOHNSON v. ESTATE OF EVELYN SAMSON |
| Court | Vermont Supreme Court |
November Term, 1942.
Statute of Frauds as Defense to Claim Against Estate of Deceased Person.
1. Exception to judgment in a civil case tried by court raises question of whether judgment is supported by findings of fact.
2. Where the oral promise is original, based upon a valuable consideration between the promisor and the promisee, and not collateral to the original debt, the case is not within the statute, provided it affirmatively appears that the consideration is one which operates to the advantage of the promisor.
3. On appeal it will be assumed in support of the judgment below that the trial court drew all reasonable inferences from the facts found; but such assumption will not extend beyond inferences which are fairly reasonable.
4. Appeal from commissioners on an estate to the county court vacates the decision of the commissioners as to the claim and the entire claim is heard de novo in the county court.
APPEAL from Commissioners. Trial by court at the April Term, 1942 Franklin County Court, Cushing, J., presiding. Judgment for the claimant. Reversed.
Judgment reversed and judgment for the plaintiff in the sum of $ 8. Let the defendant recover its costs.
H J. Holden for the defendant.
Sylvester & Ready for the plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The plaintiff presented to the commissioners on the estate of Mrs. Evelyn Samson a bill for medical services which included charges for attendance on Mrs. Samson's deceased husband, and on herself and family after her husband's death. The account was allowed to the extent of the attendance since Mrs. Samson became a widow but the balance was disallowed. The plaintiff appealed to the county court and filed his declaration therein. The defendant estate pleaded the general issue, the statute of limitations and the statute of frauds. Hearing was had without a jury, findings of fact were filed and judgment was rendered for the plaintiff for the entire amount of his claim for services rendered to the husband with interest. The cause comes before us on the defendant's exceptions.
The facts found by the trial court are these: Mrs. Samson's husband died sometime before the spring of 1931, being indebted to the plaintiff in the sum of $ 261. for medical services. His estate was never administered. In the spring of 1931 the plaintiff spoke to Mrs. Samson regarding payment of his account and she said to him that, if he would not cause her any inconvenience or open the estate, she would see to the payment of the bill when the farm "got going good." From time to time thereafter she made other promises to pay the account. The plaintiff relied upon her promises and did not apply for administration upon her husband's estate. On January 4, 1938, she paid him $ 5. The services rendered to her after her husband's death were in 1932 and in 1941, and were charged at $ 8., which was the sum allowed by the commissioners on her estate.
The defendant's exception to the judgment raises the question of whether it is supported by the findings of fact. Little v. Loud, 112 Vt. 299, 304, 23 A.2d 628; Royal Bank of Canada v. Girard, 100 Vt. 117, 119, 135 A. 497. This involves a consideration of the issue raised by the defendant's plea that the alleged promise was a special promise to answer for the debt of another, not in writing and signed by the defendant or by some person thereunto by her lawfully authorized, as provided by P. L. 1675, commonly known as the statute of frauds.
There is no question of a waiver of the statute by failure to object to the evidence, as in Taplin v. Hinckley Fibre Co., 97 Vt. 184, 187, 122 A. 426.
Where the oral promise is original, based upon a valuable consideration between the promissor and the promisee, and not collateral to the original debt, the case is not within the statute. Enos v. Owens Slate Co., 104 Vt. 329, 333, 160 A. 185; Conti v. Johnson and Mann, 91 Vt. 467, 469-71, 100 A. 874; Bellows v. Sowles, 57 Vt. 164, 170-1, 52 Am. Rep. 118. But to allow the application of this rule the consideration must be one that operates to the advantage of the promissor. Cross v. Richardson, 30 Vt. 641, 647-8. To illustrate, in Lampson v. Hobart's Est.28 Vt. 697, the plaintiff forebore to attach the property of his debtor on the verbal promise of the intestate, another creditor, to pay the debt, and assisted the intestate in making an attachment whereby the latter's claim was satisfied. This was held a sufficient consideration to take the promise out of the statute since it operated for the benefit of the intestate, the promissor. In Cross v. Richardson, 30 Vt. 641, the plaintiff released his attachment on certain mill logs at the mill of his debtors, and discharged the trustee in his action against them upon the promise of the defendant to deliver lumber of a named value to him. Here the advantage gained by the defendant, which was held to be the true consideration for the promise and to make an independent contract, consisted in the attainment of his object to purchase the logs and have them sawed into lumber freed from the embarrassment of the attachment and the trustee process. Again, in Templeton v. Bascom, 33 Vt. 132, the defendant was the only child and sole heir of his deceased father, whose estate was more then sufficient to pay all debts and charges. The defendant promised the plaintiffs, creditors of the estate, to pay their claim and relying thereon the plaintiffs did not present it to the commissioners as they would otherwise have done. The promise was held to be founded upon a new consideration, distinct from the original debt, arising from the benefit to the defendant as sole heir in receiving the estate of his father without diminution. Other decisions of this nature are Fullam v. Adams, 37 Vt. 391, 404-5, and Bellows v. Sowles, 57 Vt. 164, 52 Am. Rep. 118.
But in Durant v. Allen, 48 Vt. 58, the facts, with one exception, are strikingly like those in the present case. It appeared that the plaintiff rendered medical services to the defendant's husband during his last illness. After his death the defendant told the plaintiff that she had only the home place and furniture, and that, if he would not trouble her or present his claim to the commissioners on her husband's estate or prosecute it before the probate court, she would pay it. She paid...
To continue reading
Request your trial