Horgan v. Brady

• Decision Date: 30 March 1900
• Citation: 56 S.W. 294,155 Mo. 659
• Parties: HORGAN, Appellant, v. BRADY, Administrator
• Court: Missouri Supreme Court

56 S.W. 294

155 Mo. 659

HORGAN, Appellant, v. BRADY, Administrator

Supreme Court of Missouri, First Division

March 30, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

P. Wm Provenchere for appellant.

(1) When one receives services, or board and lodging, the law implies a promise to pay therefor. Kinship, other than the relation of parent and child, does not overcome this presumption. Only as between parent and child does kinship make an exception in this rule. And, except as between parent and child, the burden is on defendant to overcome the presumption. Smith v. Milligan, 43 Pa. 107; Curry v. Curry, 114 Pa. St. 367; Guild v Guild, 15 Pick. 129. (2) Even between parent and child, or in case of services done by one for another in whose family he lives as a member thereof, an implied promise to pay may be inferred from all the circumstances; an express contract is not required. Ramsey v. Hicks, 53 Mo.App. 195; Guild v. Guild, 15 Pick. 129; Guenther v. Birkecht's Admr., 22 Mo. 439. (3) Instructions should be made to aid the jury and should be made clear to them. Stanley v. Union Depot Co., 114 Mo. 620. (4) In a case where the law will not require proof of an express contract but may imply one, or leave the jury to infer one, from all the circumstances, it is error to instruct the jury that "it devolves upon plaintiff to show, by preponderance of the evidence, the existence of an agreement to pay," without any explanation that such agreement need not be expressed, but might be implied or inferred from all the facts and circumstances. Carson v. Potter, 22 Mo.App. 184; Anchor Milling Co. v. Walsh, 37 Mo.App. 574; Stanley v. Union Depot Co., 114 Mo. 620. (5) An instruction which is not based on the evidence, or which submits to the jury an issue not made, or which leaves the jury to surmise and conjecture, is erroneous. Goltz v. Griswold, 113 Mo. 144; Wilkerson v. Eilers, 114 Mo. 245; McCarthy v. Fagin, 42 Mo.App. 619; Moore v. Hawk, 57 Mo.App. 495.

Wm. H. O'Brien for respondent.

(1) This case is controlled by that of Whaley v. Peak, 49 Mo. 80. (2) Plaintiff and defendant, having both submitted instructions requiring the jury to decide whether as a fact the decedent was to be considered a member of plaintiff's family, the plaintiff is bound by that theory. Sprague v. Sea, 53 S.W. 1074. (3) "The law will not presume a promise to pay board as among members of the same family and persons more or less intimately or remotely related, where they are living together as one household and nothing else appears." Wilcox v. Wilcox, 48 Barb. 327. (4) The evidence shows that no charge was ever entered for board, etc., until after the death of Horgan, and this case by the very instruction plaintiff submitted, comes under the rule frequently announced by this court, that what was intended as a gratuity can not be converted into a charge. Whaley v. Peak, 49 Mo. 80; Hart v. Hess, 41 Mo. 441. (5) The burden of proving his case, whether it be on express or implied contract, was on plaintiff. Thurston v. Perry, 130 Mass. 241.

MARSHALL, J. Robinson, J., absent.

OPINION

MARSHALL, J.

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 14th, 1885, to May 1st, 1894, excepting from August 1st, 1888, to January 1st, 1889, being 104 1-2 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 14th, 1885, to May 1st, 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 is 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 forty 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 didn't 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...