Helsley v. Ferguson

• Decision Date: 08 January 1934
• Citation: 67 S.W.2d 103,228 Mo.App. 386
• Parties: KATIE HELSLEY, RESPONDENT, v. GEORGE D. FERGUSON, ADMR., ETC., APPELLANT
• Court: Kansas Court of Appeals

67 S.W.2d 103

228 Mo.App. 386

KATIE HELSLEY, RESPONDENT, v. GEORGE D. FERGUSON, ADMR., ETC., APPELLANT

Court of Appeals of Missouri, Kansas City

January 8, 1934

Appeal from Circuit Court of Henry County.--Hon. W. L. P. Burney Judge.

Judgment affirmed. (conditionally).

James A. Park and W. W. Blain for respondent.

Ross E Feaster and Montgomery, Martin & Montgomery for appellant.

OPINION

BLAND J.

This is a suit against the administrator of the estate of Orlando B. Canaday, deceased, to recover the reasonable value of the services rendered by the plaintiff to Olivia Canaday, a daughter of the deceased. There was a verdict and judgment in favor of plaintiff in the sum of $ 7,222, and defendant has appealed.

The facts show that Olivia Canaday was born in the latter part of 1903 at the home of her parents on a farm near Windsor; that her mother, who was the sister of plaintiff, died about three weeks after the child was born; that soon thereafter the father took the child to plaintiff at her home in Windsor to be reared and that she resided with plaintiff and her husband from that time until the death of the child in 1919; that the child was not strong and required considerable care and attention on the part of plaintiff. It is admitted that plaintiff treated her with kindness and affection and that plaintiff's services were entirely satisfactory.

The evidence further shows that Orlando B. Canaday and the child lived at the home of plaintiff and her husband; that he paid board for himself and furnished a cow for the family use; that when the child was ten or eleven years old plaintiff and her husband moved to California and took her with them; that they remained in California about a year and moved back to Windsor; that after staying there for awhile they again went to California, where they remained for a few months and then moved to Kansas City, where the child took sick and died on April 26, 1919.

The evidence shows that the father furnished money for clothes for the child and probably for some expenses, such as music lessons, but that he, at no time, paid anything or made provision for the payment to plaintiff for her services for taking care of his child.

In the petition plaintiff alleges that Orlando B. Canaday delivered the child when she was three weeks old to the plaintiff, telling her that he would pay her well for taking care of the child; that after continuing for nearly five years his promises to pay plaintiff well for taking care of the child, he promised to pay plaintiff for such services by providing for her well in his will; that in pursuance of such promises plaintiff kept the child from November 20, 1903, until her death and performed the services for the child under the contract and promises that "he, the said Orlando B. Canaday would pay plaintiff well for said services and pay her by leaving her his property at his death in his will;" that Canaday continued to promise plaintiff that she would be paid well for her services and that he would pay her in his will; that Canaday told various persons, who communicated his statements to plaintiff, to the effect that he was going to pay plaintiff well and was going to pay her by leaving her his property in his will; that after the death of the child he continued to make promises to pay plaintiff well by leaving her his property in his will; that she (plaintiff) accepted the proposals and offers of Canaday to pay her and to pay her in his will and performed her part of the agreement; that Canaday violated his part of the agreement by failing to provide for plaintiff in his will and failed and neglected to leave plaintiff his property or a sufficient sum to pay plaintiff for her work and labor and left plaintiff without any compensation whatever therefor.

To prove the contract plaintiff introduced the following evidence.

Bell Helsley testified that Canaday told her that on account of her kindness to his child plaintiff "would get the biggest part of his estate" at the end of his life. Lee Douglas testified that he heard Canaday say "he was going to give her (plaintiff) a piece of property" for taking care of the child. Violetta Millhiser testified that Canaday told her, "I intend to remember her (plaintiff) in my will, and he said, he intended to leave her money and remember her because she had been a mother to his child." Gertrude Ransome testified that Canaday told her:

"I can never repay Aunt Katie (plaintiff) for the care she give Olivia, and the care she has been; and he says, Well, I haven't done anything for her, except to help them with the dressing of Olivia, but says, I intend to, when I get my affairs straightened up, and I am through with my estate, I expect that she will be paid for what she has done for me."

W. R. Hall testified that Canaday told him that he had not paid plaintiff "but I am going to pay her and pay her well" and that "he was going to leave Olivia and Katie all my property when I die." Eula Keith testified that Canaday told her that "he expected to will his property to Mrs. Helsley (plaintiff) and Olivia" and that "he promised Mrs. Helsley to pay her for taking care of Olivia but he had not done so and he expected to take care of her in his will;" that this was short time after the death of his child.

John Swisher testified that Canaday told him that he was going to take care of the plaintiff in his will for looking after his child "either in property or money." Finis Miller testified that Canaday told him that he intended to "leave what he had to Mrs. Helsley and her daughter . . . for the maintenance of his child."

Plaintiff, Katie Helsley, was not permitted to testify because the other party to the contract was dead. Fred Helsley, plaintiff's husband, attended the trial but he was not placed upon the stand and did not testify. The undisputed evidence shows that Canaday made no provision for plaintiff by will or otherwise.

The defense was that the contract for keeping the child was between Canaday on one hand and plaintiff and her husband on the other, and in this connection placed upon the stand a daughter of plaintiff and her husband, who testified that she asked Canaday to permit her to keep the child; that her father and mother were present and heard the conversation that Canaday said, "No, he had...