Action by Mary Horgan against James F. Brady, as administrator of the estate of Daniel Horgan, to recover a claim against decedent. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.
The appellant's statement of this case is fair and impartial, and it is therefore adopted. It is as follows: "This case was commenced in the probate court of the city of St. Louis. The plaintiff, having given notice as required by the statute, filed there her account or statement of the items of her claim against the estate of Daniel Horgan, deceased. Due notice having been given to James F. Brady, administrator of the estate, the parties came, and the case was tried by the court. And on the evidence the court (Judge Rassieur) found for the plaintiff in the sum of $2,129.55, and allowed her claim for that sum, and placed the same in the fifth class. From this judgment the defendant appealed to the circuit court, and there the case was tried de novo before a jury, and under the instructions of the court the jury found for the defendant. Plaintiff duly filed a motion for a new trial, which was overruled, and at the same term filed her bill of exceptions and appealed. All exceptions were duly saved. There are no pleadings. The questions here presented arise on the instructions given by the court. The account is for board, lodging, and laundry furnished to and done for deceased from March 14, 1885, to May 1, 1894, excepting from August 1, 1888, to January 1, 1889, being 104½ months, at $20 a month, and for rent of certain premises; for money collected by deceased for and on account of plaintiff; for money loaned by plaintiff to deceased, aggregating in all, without interest, the sum of $2,918.90. Plaintiff introduced evidence tending to prove the several items of her account or statement; that she furnished deceased with board, lodging, and laundry at and during the times mentioned in her statement, namely, from March 14, 1885, to May 1, 1894, excepting a period of five months
during which he was absent from the city, and that the same was reasonably worth, to wit, $20 per month; that deceased had from her the use and occupation of a room used as a lumber room or carpenter shop, a stable and cellar, all as stated in the account, at and during all the times mentioned in her account, and that the respective amounts charged for the rent or use of the same were reasonable; that the deceased collected on plaintiff's account certain sums of money, and that she loaned him certain sums, all as charged by her. From the evidence it appears that the claimant is an old woman,—a widow; that she had two pieces of leasehold property, which she had acquired through her deceased husband, one on the corner of Twenty-Second and Biddle streets, and one on Division street, near by; that she rented her rooms to tenants; and that she had no other property or source of income. Her deceased husband, also named Dan Horgan, was the uncle of Daniel Horgan, against whose estate this proceeding was brought. Daniel Horgan, the uncle, died in 1885. At the time of his death his nephew, against whose estate this proceeding is brought, was living at the home of his uncle and aunt, this plaintiff. After the uncle's death, a Miss Long, a relative, spoke to him about having his aunt come and live with her, but deceased said, `Never mind, that he was going to board with her,' and he continued to live there. Claimant treated him kindly and with affection; acknowledged him to be her nephew. Witness stated that she treated him kindly; nursed him when he was sick; treated him as a mother. Deceased died in April, 1896. He was a bachelor, and at the time of his death was 40 years of age, and had acquired some estate. He was a man who was close in business affairs, and loth to pay out money. For a time he kept a coal yard on the premises, Twenty-Second and Biddle, and used the shed or stable there. He also did work as a carpenter, and used, for a time, a room of claimant and a cellar under her house as a storeroom for old lumber, old doors, window frames, and the like. He carried on a small coal business. Was something of a carpenter and builder. He made, in books belonging to claimant, from time to time, not regular accounts, but some rough memoranda. One of these, in his own handwriting, is an entry or memorandum: `July 14, '90. Dan Horgan, dr. to Mary Horgan, $100.' In plaintiff's account is one item of $100, amount collected by deceased in January, 1896, on account of plaintiff, from Stephen Doust, on a note of Doust for $300; $100 of the consideration of this note having been loaned by plaintiff to Doust at request of deceased, and the whole of the note afterwards collected by deceased. On July 14, 1890, date of that entry, deceased took from Doust a note of $300, of that date, secured by a deed of trust, and afterwards, in January, 1896, the whole sum was collected by him. He made admissions of using money of his aunt's in making up sums to loan out upon mortgages. Plaintiff also introduced a lot of memoranda, on separate scraps of paper, admitted to have been made by herself at the time, of various small sums of money loaned to him, and corresponding with the small sums named in the account of money loaned. There was evidence that deceased had on many occasions, and to several parties, admitted that he was owing his aunt a great deal of money. Evidence that she had spoken to him on the matter of paying board, and asked him for his board; that he had stated to several witnesses that his aunt wanted him to pay board, but that he was not going to pay it; and he made the remark that when the old woman died it would all be his anyhow, and such like remarks. On the other hand, a Mrs. Lawrence testified that she had been a neighbor of plaintiff, but had had a misunderstanding with her; that claimant had told her that deceased was to stay there with her, do the general repairs around, and pay no board; that plaintiff had admitted having $50 belonging to deceased at the time of his death. Mrs. Welby, sister of the deceased, testified that some three or four years before deceased on one occasion was ill, and complained of his treatment,—his aunt's lack of attention,—and said that he was going to leave her; that he had taken good care of her and the place, and that he would not have stayed as long as he did had it not been for the promise to his uncle, and that he did not owe her anything; and claimant asked him not to go, and said she always treated him kindly, and needed his assistance, and then he said, `I don't owe you anything;' and she said, `I know you don't.' This witness, on cross-examination, stated: That in the probate court her testimony had been that deceased had on one occasion paid his board to his aunt. That some seven or eight years ago witness was residing at plaintiff's, and deceased paid his board, and paid her board, and witness...
