Heil v. Zahn

• Decision Date: 06 February 1947
• Docket Number: 57.
• Citation: 51 A.2d 174,187 Md. 603
• Parties: HEIL v. ZAHN.
• Court: Maryland Court of Appeals

51 A.2d 174

187 Md. 603

HEIL v. ZAHN.

No. 57.

Court of Appeals of Maryland

February 6, 1947

Appeal from Circuit Court, Washington County; Joseph D. Mish, Judge.

Action by Stella C. Heil against Charles W. Zahn, executor of the last will of William David Hammond, deceased, for services allegedly rendered deceased as housekeeper and nurse. From the judgment, the plaintiff appeals.

Reversed and new trial awarded.

Edward Oswald, Jr., of Hagerstown (George N. Oswald, of Hagerstown on the brief), for appellant.

Leo H Miller, of Hagerstown, (Paul C. Zahn, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

Stella C. Heil, appellant, sued Charles W. Zahn, Executor of the Last Will and Testament of William David Hammond, deceased appellee, in the Circuit Court for Washington County for services as housekeeper and nurse at the rate of $25 per week from January 2, 1939 to June 24, 1945. She claimed that the total amount which should have been paid her was $8,375. A credit was given of $1,005 and the balance for which she entered suit was $7,370. During that time the appellant admitted that she received an average of $3 per week, her room and board, but claimed that her services were worth much more than that amount and that Dr. Hammond agreed to pay a much larger sum. The suit is brought for the difference between the amount she received and her claim of $25 per week. The case was tried before a jury which resulted in a verdict for the defendant, appellee here. From the judgment on the verdict the appellant appeals.

The declaration is brought under two common counts:

'1. For work done and materials furnished by the Plaintiff for William David Hammond, during his lifetime, at his request;

'2. And for money found to be due from William David Hammond, during his lifetime, to the Plaintiff on accounts stated between them.'

And the third, a special count, follows: '3. And for the William David Hammond, during his lifetime, to wit on or about the 2nd day of January, 1939, employed the said Plaintiff to act as housekeeper and practical nurse and agreed to pay her for her services the sum of $25.00 per week; that the Plaintiff performed the services of housekeeper and practical nurse for the said William David Hammond from the date of her employment to the date of his death, on or about the 24th day of June, 1945, and, although she did all things necessary on her part to entitle her to receive wages at the rate of $25.00 per week under said contract of employment, the said William David Hammond did not pay the full amount to which she was entitled.'

The suit is therefore a suit on quantum meruit and also on an express contract. This has never been considered faulty. It was said by this Court in the case of Bright v. Ganas, 171 Md. 493, at page 497, 189 A. 427, 428, 109 A.L.R. 467. 'It has never been considered faulty pleading to include the common counts, when there is a count on an express contract. The practice in this state is to do both, or as said in 1 Poe Pl., [& Pr.] § 583: 'In assumpsit a careful pleader, when declaring on a special contract, seldom omits the common counts.''

The case comes to this Court on three exceptions to the ruling of the Trial Court on the evidence. The first exception was taken when the appellant was testifying on cross-examination by counsel for defendant-appellee. She testified in part as follows: 'Q. You say you bought groceries, did the cleaning and scrubbing about the House? A. I did.

'Q. And you were perfectly satisfied with the arrangements and conditions under which you were working for those six years, were you not? A. I was not.

'Q. Were you compelled to stay there for any reason whatsoever? A. You heard the note, loyalty, I am loyal.

'Q. Other than loyalty, that was the reason you stayed, was it? A. No, I was promised more when he was able to pay it.'

The attorney for the defendant, appellee, objected to the last answer. The Court sustained the objection and ordered that the answer be atricken out. The appellant assigns this ruling as error. Under the provisions of Article 35, Section 3, of the Code 1939 of Public General Laws of Maryland, in an action against an executor, a party to the cause is not allowed to testify as to any transaction had with or statement made by the testator unless called to testify by the opposite party. Worthington v. Worthington, 112 Md. 135, 142, 76 A. 46; Whitridge v. Whitridge, 76 Md. 54, 76, 24 A. 645; Cross v. Iler, 103 Md. 592, 596, 64 A. 33. We think the answer was responsive to the question and was admissible and should not have been stricken out. It would seem that a witness cross-examined by the opposite party is 'called to testify by the opposite party'. In any event when the opposite party asks a question he not only invites but requires an answer and thereby waives any right to object to a responsive answer.

The second exception was taken when the Court admitted in evidence the will of Dr. William Hammond, the testator, offered by the defendant, appellee, because it shows a bequest of $2,000 by the testator to Estella C. Heil. Estella C. Heil and Stella C. Heil are the same person. The appellant contends that the admission in evidence of this will violated the plain principle of the rule against hearsay evidence. If a legacy is less than the amount of the debt owing by the testator, the will is not presumed to be in satisfaction of the debt even if the legacy is only slightly less than the amount of the debt. In the case of Owings, Ex'rs v. Owings, 1 Har. & G., 484, the testator owed two of his grandchildren each a sum of money. In his will he devised to these two grandchildren a tract of land and bequeathed to each of them the sum of $100. In deciding whether the legacy operated as a satisfaction of the debt, it was said by this Court at page 491 of 1 Har. & G. 'As to the position that the devise and bequest operated as a satisfaction of the debt, it is considered not to be sustainable, because it is well settled, that a devise of land is not considered in law a satisfaction of a pecuniary debt, nor can the legacy in this case operate that effect, because it is of a less amount than the sum due; * * *'.

However in the instant case the defendant, appellee, filed, among other pleas, pleas that his decedent did not promise as alleged, was never indebted as alleged, and '(3) That the said William David Hammond, during his lifetime, did not agree to pay for the services of the Plaintiff the sum of Twenty-five Dollars a week and the Plaintiff is not entitled to receive any additional wages for services performed for the said William David Hammond, she, the said Plaintiff, having been paid in full for all services rendered.' The appellee denies the debt in its entirety. He offered the evidence of Dr. Scott R. Wagoner, Minister of the Zion Reformed and Evangelical Church, of Hagerstown, that Miss Heil, the appellant, told him that she was working for Dr. Hammond for a very small consideration, but she had been promised additional compensation in the will. The defendant, Mr. Charles W. Zahn, the Executor, testified that the plaintiff told him that Dr. Hammond said to her, 'I am not paying you much, but when I die you will not only get in the hundreds, but you will get in the thousands.' The will...