Huff v. Simmers

• Decision Date: 11 January 1911
• Citation: 79 A. 1003,114 Md. 548
• Parties: HUFF v. SIMMERS.
• Court: Maryland Court of Appeals

79 A. 1003

114 Md. 548

HUFF v. SIMMERS.

Court of Appeals of Maryland

January 11, 1911

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Harry N. Simmers against Nora E. Huff, administratrix with will annexed of Flora B. Simmers, deceased.From a judgment for plaintiff, defendant appeals.Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKETHOMAS, PATTISON, and URNER, JJ.

Harvey R. Spessard and Levin Stonebraker, for appellant.

Joseph W. Wolfinger, for appellee.

BURKE J.

The appellee recovered a judgment against the appellant in the circuit court for Washington county, and this is the defendant's appeal.It involves the correctness of three rulings made by the lower court during the progress of the trial upon questions of evidence and instructions to the jury granted at the close of the whole case.As the case must be remanded for a new trial, we will refrain upon commenting upon the evidence, except so far as it may be necessary to make clear the reasons upon which our decision rests.The suit is in assumpsit against the administrator c. t. a. of Flora B. Simmers, deceased, who was the mother of the plaintiff.The declaration contained the common counts, and one special count which alleged that Flora B. Simmers on or about the 1st day of January, 1907, agreed with and promised the plaintiff that, if he would conduct and manage the bakery owned and controlled by her, she would pay the plaintiff for his services; that he did conduct and manage said bakery until or about January 1, 1909, but had not been paid for his services thus rendered.The plaintiff filed the following bill of particulars:

Hagerstown, Md., March 2, 1910.
The Estate of Flora B. Simmers, to Harry N. Simmers Dr
To amount paid Dr. A. A. Lamar for medicine and medical service to
Flora B. Simmers, during her lifetime ...............................	$ 20.00
To amount paid George B. Oswald, for interest on mortgage against
Metz property for Flora B. Simmers, during her lifetime ..............	180.00
To amount paid D. W. Reichard, collector of state and county taxes
for 1908, for Flora B. Simmers, during her lifetime ...................	14.00
To services rendered Flora B. Simmers during her lifetime, in
conducting and managing the bakery of the said Flora B. Simmers
from the 1st day of January, 1907, to the 1st day of January, 1909
(24 months), at $30 per month ........................................	720.00
To amount paid L. J. Orrick on account of Flora B. Simmers, during
her lifetime ..........................................................	99.76
	---------
	$1,034.23

The defendant pleaded the general issue pleas upon which issue was joined.No evidence was offered to support the second and third items of the bill of particulars, and by the defendant's third prayer, which was conceded, the jury was instructed that no recovery could be had for either of these charges.The evidence shows that Thomas Simmers, the father of the plaintiff, died on or about the 1st of December, 1907.At the time of his death and for a number of years prior thereto, he was conducting a bakery and small confectionery store at Smithsburg, in Washington county.A trader's license for the conduct of this business had been issued to him for the six years immediately preceding his death.The one issued to him in 1907 expired on May 1, 1908.There was evidence to the effect that the fixtures and stock in trade in this store and bakery had been supplied by Mrs. Caroline Norford, and at the death of Flora B. Simmers, her daughter, they belonged to her.Mrs. Norford testified that the death of her daughter, Mrs. Simmers, the counters, shelving, appliances, and stock in trade belonged to her; that she had started the store many years ago.Declarations of Flora B. Simmers were put in evidence to the effect that the fixtures had been put in by her mother, and that she was to have the use of them as long as she wanted, and that, "if she happened to die before her mother, they were to be her mother's and that her mother furnished the money to finish paying for the stock she bought."No administration was had upon the estate of Thomas Simmers, and for the year 1908(the year succeeding his death) the license for the conduct of the business was issued to the plaintiff.Mrs. Simmers died in December, 1908, leaving a last will and testament in which the plaintiff was appointed executor, and in the inventory of her personal estate no return, or mention was made of the chattels or stock in trade of the bakery or store.The plaintiff was removed by the orphans' court of Washington county as executor, and the appellant was appointed administrator c. t. a. of the estate of Mrs. Simmers.It appears that during the latter part of the year 1907Thomas Simmers was in feeble health, and not able to attend to business, and there is evidence on behalf of the plaintiff that, after the death of Thomas Simmers, Mrs. Flora B. Simmers conducted the bakery and store until her death in December, 1908, although the license was issued to the plaintiff.The plaintiff produced a number of witnesses who testified that during the years 1907 and 1908the plaintiff did general work in connection with the bakery and the store; that he cut the wood for the oven, did the baking, and attended to the business.Mrs. Virginia Simmers, wife of the plaintiff, testified that the plaintiff did the work in connection with the store and bakery; that she heard Mrs. Simmers ask her husband to do the work, and attend to everything; that his father was not able to do anything; and that she would pay him.This the witness said was in June, 1907, and that "right after" the death of his father Mrs. Simmers told the plaintiff that, if he would stay there and work for her, she would pay him $30 per month; that her husband did the work until the business was closed in April, 1910.Mrs. Norford and James Butts testified that, after the death of Thomas Simmers, they heard Mrs. Simmers say that she would pay the plaintiff $30 per month for his work.J. L. Orrick, a baker, testified that the work done by the plaintiff was worth $8 per week.This evidence, if believed by the jury, would have entitled the plaintiff to a verdict for the services rendered in pursuance of his mother's promise.

Under the pleadings, it was competent for the defendant to show either that Mrs. Simmers was never indebted to the plaintiff, or that any indebtedness which may have existed had been wholly or partly paid.Any facts and circumstances from which it might be reasonably inferred that she never owed the plaintiff, or that her indebtedness to him.If any existed, had been paid, were admissible.

The defendant offered to prove by Mrs. Clarine Norford that on or about February or March after the death of Mrs. Simmers the plaintiff"presented a paper to her which he then and there explained was a claim for $2,500, which he desired to bring against the estate of his mother, Flora B. Simmers, for working and baking for his father for 15 years," and offered to follow this up "by proving by Thomas E Hilliard, register of wills, that in conversation that he had with Mr. Simmers, the plaintiff, in connection with this said alleged claim of $2,500, that he then and there told the said Harry N. Simmers that it was the custom of the court, meaning thereby the orphans' court, where an executor presented a bill or claim, to ask him to get the indorsement of the heirs."The refusal of the court to permit this evidence to be introduced constitutes the first exception.There is evidence in the record that the plaintiff testified before the orphans' court in the proceedings had therein to remove him as executor that "he had no claim at all against his mother's estate."The proffered testimony should have been admitted as it reflected upon the bona fides of the claim made in this suit.It is said in Brooke v. Winters,39 Md. 505, that "the rule that excludes facts because they are collateral does not apply to facts wherever existing, if they may afford any reasonable presumption as to the matter in dispute.Whether they are facts before or after the suit they are admissible if they may illustrate, or explain the question in issue."Counsel for the appellee contended that the evidence was properly excluded because it offends against the rule which forbids offers of...