Houser's Estate, In re

• Decision Date: 12 March 1965
• Docket Number: No. 35798,35798
• Citation: 133 N.W.2d 618,178 Neb. 401
• Parties: In the Matter of the ESTATE of James W. HOUSER, Deceased. Wilbur HOUSER, Appellant, v. Theodore R. HOUSER, Executor of the Estate of James W. Houser, Deceased, Appellee.
• Court: Nebraska Supreme Court

Page 618

133 N.W.2d 618

178 Neb. 401

In the Matter of the ESTATE of James W. HOUSER, Deceased.

Wilbur HOUSER, Appellant, v. Theodore R. HOUSER, Executor of the Estate of James W. Houser, Deceased, Appellee.

No. 35798.

Supreme Court of Nebraska.

March 12, 1965.

Syllabus by the Court

1. Unless a statute provides otherwise, the general rule is that a cause or right of action accrues, so as to start the statute of limitations running, when the right to institute and maintain an action arises, and not before.

2. Where there is an oral or implied promise to leave property by will in consideration of services to be rendered during the promisor's life, on failure of the employer to carry out the promise, thereby remitting the promisee to a quasi contractual claim for the value of his services, the statute of limitations begins to run against such a claim for services, based upon a quantum meruit, not as the services are rendered, but at the death of the promisor, when the obligation matures.

3. The general rule is that if payment for services was to be made by a conveyance or devise of property by decedent, but he refused or neglected to perform the agreement in his lifetime, and the amount to be paid for such services was not agreed upon, then the person rendering the same is entitled to recover the reasonable value thereof.

4. The presumption of gratuity which is said to exist with reference to services rendered and received between closely related persons is entirely rebuttable by circumstantial as well as direct evidence, and such presumption diminishes in direct proportion to the remoteness of the degree and nature of the family relationship and the character of the duties performed.

5. Such presumption is not conclusive and recovery is permitted for services rendered if the evidence shows that they were rendered under an express contract, either written or oral, to pay for them, or where there was an implied agreement or contract to pay as when the circumstances are such that a mutual intention, understanding, or expectation that the services should be paid for is a reasonable and just conclusion established by clear and satisfactory evidence.

Clinton & McNish, Guy F. Bush, Sidney, for appellant.

Martin, Davis, Mattoon & Matzke, Sidney, for appellee.

Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH and BROWER, JJ., and POLLOCK and SIDNER, District Judges.

BROWER, Justice.

This action originated in the county court of Cheyenne County, Nebraska, by the appellant Wilbur Houser, hereinafter at times referred to as claimant, filing within the time allowed by the court a claim in the Estate of James W. Houser, deceased, at times designated as the decedent, in the amount of $5,000 alleged to be the reasonable value of his services after allowing all credits thereon for assisting the decedent as a hired man in farming operations in Cheyenne County, Nebraska, during the period from 1941 to 1951.

The county court found that the claim was barred by the statute of limitations and disallowed and dismissed it. An appeal was taken by the claimant to the district court for said county. To the petition of the claimant filed therein, Theodore R. Houser as executor answered admitting that the claimant had rendered certain services for the decedent. He further alleged claimant had been fully compensated therefor, denied the other allegations of the petition, and alleged the claim was barred by the statute of limitations.

At the conclusion of the evidence offered by the claimant in a trial to a jury, the executor made a motion for a directed verdict and judgment which was sustained by the trial court and the claim was dismissed. The trial court give as its reason for the ruling that the claim was barred by the statute of limitations. His motion for a new trial having been overruled, the claimant brings his case to this court by appeal.

The claimant Wilbur Houser was both a nephew and stepson of the deceased James W. Houser, the latter having married claimant's mother on the death of her first husband who was the brother of the decedent herein and the father of the claimant. The testimony on behalf of the claimant by his wife, Pauline Houser, shows that in 1942 they were residing at Rawlins, Wyoming, with their two children. At that time claimant was employed as a dishwasher and fry cook in a cafe for which he received $4 a day, 6 days a week, and his meals. The witness testified that between Christmas and New Year's in 1942, claimant and wife were on a vacation at the home of the claimant's mother and stepfather south of Sunol and Lodgepole, Nebraska. During this vacation on an occasion a conversation occurred in the living room of the home of James W. Houser between him and the claimant in the presence of the witness and Lena S. Houser, the wife of the decedent and mother of the claimant. James W. Houser said at that time: "I want you to come down and help me. If you don't, we are about to lose the farm. I need help because the boys are in Service or about to go to Service.' * * * 'We are about to lose this place. I can't give you much money now, but when I die, I will remember you; the more you put into the place in help, the more you will get when I am gone." He then stated that 'Jimmy' would come along and help them move. Claimant then answered: "Well, Dad, I have been thinking about going on the railroad, because it pays good wages." The stepfather then said: "Well, you better come on down and help us, because I need your help." The claimant then talked with his wife and they decided to come under the terms that decedent would give them a decent living and remember the claimant in his will. 'Jimmy' moved them down to a farm of the claimant's mother, Lena S. Houser, a few miles from the home of the decedent. It was a half-section with only 70 acres of rough and poor tillable ground. The decedent's farm was about 1,000 acres of tillable ground and a section of pasture. At that time the decedent had three children at home, 'Jimmy' aged 18, and Ted and Paul, 10 and 8, respectively. During the whole period, 1942 to February 1951, the claimant did general farm work at his stepfather's farm. He did the chores in the morning and worked until everything was finished at evening. His hours were long, particularly during spring field work and fall harvest. He was a good mechanic and took care of the farm machinery.

In 1945 claimant started shearing sheep for others which took about a month or 6 weeks starting late in April or early May from which he earned and kept about $700 a year.

The decedent during this time gave claimant and his wife the use of two cows to milk. As their finances increased they bought cows and on leaving the farm they had eight cows and eight calves. Claimant was not paid a regular wage and Pauline Houser went to work when they first came to the farm. She worked from February until after May for $9 a week, the savings from which she used to buy chickens, and they soon had a huge flock. The decedent gave them only a little money, generally a $10 bill. He did, however, give them 400 or 500 bushels of wheat when their daughter was born, $200 at Christmas the first year they moved, and $1,000 at one time to buy a new car when claimant's family had trouble all going to church or town in the old pickup. During a discussion concerning buying a car the decedent had said to them that he could not do anything then but they were improving the place and the more the claimant and his wife put into it, the more they were going to get when he was gone. In 1950 the claimant and his wife wanted to buy three quarter-sections of land. They needed $5,000 to pay down on it and asked decedent for a loan. He had then been abrupt with them and said: "You just can't wait until I am gone." The claimant had agreed to stay only until some of the boys came back from the service. They returned 'around 1946' and by 1951 there was no shortage of labor and claimant was no longer needed to help out. They parted, however, in 1951 without animosity. The deceased left a will and codicil by which nothing was left to the claimant.

Paul Misegadis testified that he was farming in the same vicinity from 1942 to 1951. He testified he had occasion to hire farm help during this period and knew what the going rate of pay for hired men was in 1942. He stated it was $150 a month and that board and room were furnished in addition to the wage. Further, he said he was acquainted with the claimant and had worked with him, and the claimant had worked for him and he was a real good worker.

The claimant assigns error to the trial court in ruling that his claim as a matter of law was barred by the statute of limitations. He contends that unless a statute provides otherwise, the general rule is that a cause or right of action accrues, so as to start the statute of limitations running, when the right to institute and maintain an action arises, and not before. 54 C.J.S. Limitations of Actions § 109, p. 11; Bend v. Marsh, 145 Neb. 780, 18 N.W.2d 106; Barney v. City of Lincoln, 144 Neb. 537, 13 N.W.2d 870. The claimant therefore maintains the statute did not start to run until the death of the decedent in 1962.

The executor's position is that the promise of payment at death is only applicable to an action for specific performance to enforce the express contract. He maintains the claimant, by bringing action on the quasi contract implied by law, cannot attach to it the provisions of the express agreement with respect to the time of payment, particularly where as here the claimant concedes the express contract cannot be enforced because of the statute of frauds. The executor maintains that in quantum meruit an action on the implied contract accrues when the labor is furnished and is barred by the statute of limitations unless an action is brought within 4 years from the termination of the services, citing section 25-206, R.R.S. 1943, and In...