Ireland v. Spickard
| Decision Date | 05 May 1902 |
| Parties | H. J. IRELAND et ux., Respondents, v. A. U. SPICKARD, Administrator, etc., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Livingston Circuit Court.--Hon. J. W. Alexander, Judge.
AFFIRMED.
Judgment affirmed.
Sheetz & Sons for appellant.
(1) The court, over the objection of appellant, admitted evidence that James J. Lawson had given plaintiffs, as pay for extra services, forty acres of land of the value of $ 600 and $ 45 in cash. This was error. The contract in issue was dated April 4, 1894, and James Lawson died on May 23, 1894, and these sums could not have been for reward of services for one month and nineteen days. (2) The court allowed one of the plaintiffs to testify as a witness in this cause. This was error; he was a party to the suit and to the contract in issue, and the other party being dead, he was incompetent. Curd v. Brown, 148 Mo. 82, and cases cited. (3) Instruction one and two on behalf of plaintiff are not the law. Kammerman v. Wigginton, 70 Mo.App. 480. In this case, on account of the relationship of the parties, the law does not imply a contract. Woods v. Land, 30 Mo.App 181; Erhart v. Dietrich, 118 Mo. 431. (4) This contract contemplated all that was necessary to be done for them by plaintiffs, and these receipts are conclusive. Baker v. Nacktrieb, 15 Lawyer Co. Op. U. S. Rep 528, and cases cited in note. (5) Defendant's instruction No. 8, was a proper construction of the contract read in evidence and should have been given. (6) The court erred in refusing instructions Nos. 9 and 10 on behalf of defendants. The receipts read in evidence were in full of "all demands to date," and the last one was signed March 1 1899, and were conclusive of the demand sued on, and a complete bar thereto. Jackson v. Ely, 57 Ohio St. 450; s. c., 49 N.W. 792; Conant v. Kimball's Estate, 95 Wis. 550; s. c., 70 N.W. 74. (7) The court erred in admitting the evidence of Gregory Lawson in regard to the receipts. These receipts contained all the elements of a contract and were conclusive. Conant v. Kimball's Estate, supra; Baker v. Nachtrieb, supra.
J. M. Davis & Sons with C. A. Loomis for respondents.
(1) The receipts offered in evidence would not bar a recovery. Grumley v. Webb, 44 Mo. 444; Bigbee v. Coombs, 64 Mo. 529; State ex rel. v. Cummiskey, 34 Mo.App. 189; Griffith v. Creighton, Admr., 61 Mo.App. 1; Cole County v. Dallmeyer, 101 Mo. 67; Aull v. St. Louis Trust Co., 149 Mo. 17; Slattery v. Bates, 8 Mo.App. 595; Wharton on Evidence, sec. 1064, note 4; Quattrochi Bros. v. Bank, 89 Mo.App. 508. (2) A receipt "in full of all demands," is not conclusive and will not bar a recovery for matters not included therein. Slattery v. Bates, supra; Bigbee v. Coombs, supra; State ex rel. v. Cummiskey, supra; Grumley v. Webb, supra; Harden v. Gordon, 2 Mason (U.S.) 561, opinion by Judge STORY. (3) When plaintiffs proved that the work and labor had been done at the instance of Mrs. Lawson, and had been accepted by her, then they made out a prima facie case, and the law implies an agreement on her part to pay the reasonable value thereof. Sprague v. Sea, 152 Mo. 327; Hayden v. Parsons, 70 Mo.App. 493; Voerster v. Kunkel, 86 Mo.App. 194. (4) Plaintiffs' second instruction properly declares the law. Buelterman v. Meyer, 132 Mo. 474; McQueen v. Wilson, 51 Mo.App. 138; Voerster v. Kunkel, supra; Sprague v. Sea, supra. (5) While the contract offered in evidence is inartificially drawn, there is not one line in it which could be tortured in such a manner as that the court would have been justified in construing it to read that plaintiff should care for Nancy Lawson during her lifetime. (6) There was no error in permitting plaintiff, H. J. Ireland, to testify. Martin v. Jones, 59 Mo. 181, and cases cited on 187; Eyermann v. Piron, 151 Mo. 107 l. c. 114; Justice v. Phillips (Ky.), 64 S.W. 963; Banking House v. Rood, 132 Mo. 263; Whaley, exrs., v. Peak, 49 Mo. 82; R. S. 1899, sec. 4652. (7) No error was committed by the court in admitting evidence that James J. Lawson had given plaintiffs pay for extra services rendered. Rose v. Carbonating Co., 60 Mo.App. 28; Union Depot Co. v. Railway, 131 Mo. 291; Dobbins v. Edmonds, 18 Mo.App. 307; Foster Woolen Co. v. Wollman, 87 Mo.App. 667.
--The conspicuous facts disclosed by the evidence in the present case may be chronologically stated in this wise, namely: James J. Lawson, a man possessed of a considerable estate and far advanced in years, with his wife Nancy C., had been, for some time prior to April 4, 1894, residing and boarding with the plaintiffs while the latter occupied certain premises of the former consisting of a house, lot, barn and orchard, and that on said date such latter entered into a written contract with such former to the effect that such latter thereby "agreed to remain in the house where they now reside at the present price and figures of board, which is fifty dollars each three months, with garden, house, lot, barn and orchard free of charge, and in this agreement the parties of the second part agree to remain with the parties of the first part as long as they can agree, and at any time should either of the parties of the first part die, the parties of first part still agree to remain with the other with half of the present price, and when both of parties of the first part are no more, this agreement shall be void."
A little over a month after this said contract was entered into the said James J. Lawson departed this life, after which occurrence his wife continued to live with the plaintiffs until April 18, 1899, paying for her board twenty-five dollars quarterly as provided in said contract. At each quarterly payment the plaintiffs executed their receipt in full "for all demands up to date." During the time the wife continued to reside with plaintiffs, after the death of her husband, she was, much of the time, in such an ailing, sick and infirm condition as to require constant care and attention, which were given her by plaintiffs. The plaintiffs furnished her wood and meals for her numerous visitors during the time she resided with them after the death of her husband.
A few months after she moved away from the plaintiffs' residence, she died, leaving an estate of several thousand dollars in valuation. The defendant is the administrator of her estate, with the will annexed. The plaintiffs presented to the probate court an itemized account against her estate for the care and attention given her by them, for the firewood furnished her and meals provided for her visitors. In the circuit where the cause was removed by appeal, the plaintiffs had judgment, and the defendant administrator, etc., appealed here.
I. The defendant objects that the trial court erred in allowing the plaintiff, H. J. Ireland, to testify in the case. It appears from the record that Spickard and Perry, two of the witnesses called by the defendant, testified at the trial to the effect that after the death of the deceased the said plaintiff had stated to them, at a certain time and place, that the deceased was not indebted to him, and that he would not bring in a nursebill against her estate, and also that he had been well paid for everything he had done for her. The plaintiff, over the objections of the defendant, was permitted in rebuttal to testify that he had not made the said admissions to which the witnesses Spickard and Perry had testified. The testimony of the plaintiff was contradictory of that of the defendant's witnesses Spickard and Perry, relating to certain admissions made by him to them after the probate of the will of the deceased. For this purpose the plaintiff, under the statute (section 4652, Revised Statutes 1899), was competent to testify. He did not testify as to any matter connected with the interest or with any transaction with the deceased, or to any matter of which she had any knowledge or connection. We have no doubt that the plaintiff was competent to testify, as he did, to any fact independent of transactions or connections with the deceased, and that, therefore, the trial court did not err in overruling the defendant's objections to the admission of his testimony. Callahan v. Riggins, 43 Mo.App. 130; Stanton v. Ryan, 41 Mo. 510; McGlothlin v. Hemry, 59 Mo. 213; Martin v. Jones, 59 Mo. 181; Wade v. Hardy, 75 Mo. 394; Banking House v. Rood, 132 Mo. 256, 33 S.W. 816; Eyermann v. Piron, 151 Mo. 107, 52 S.W. 229.
II. The defendant further objects that the court erred in permitting Gregory Lawson--a son of James J. Lawson--who was a witness for plaintiff, to testify that his father and stepmother, Nancy C., had lived with plaintiffs several years prior to his father's death and the making of the written contract, and that during that time his father, if sick a week, would pay plaintiff, Mrs. Ireland, for her services, besides his board bill, from five to twenty dollars. He further testified that at one time when his father had been sick two weeks he had paid her twenty dollars, and that in his last sickness had hired additional help and had paid one party two hundred and seventy-five dollars to help the plaintiff, Mrs. Ireland, take care of him, and that besides this he paid her for her additional labor in taking care of him a fifty-acre tract of land for which he had paid six hundred dollars. The defendant's contention is that since the said James J. Lawson died in about six weeks after the making of said contract, that the payment of the money and the conveyance of the land to the plaintiff, Mrs. Ireland, could not have been as a reward for her services for so short a period.
The right of the plaintiffs to recover is made, by the parties to this action, to turn upon the construction of the contract ...
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