Jack v. Mckee

• Decision Date: 23 October 1848
• Citation: 9 Pa. 235
• Parties: JACK <I>v.</I> MCKEE.
• Court: Pennsylvania Supreme Court

9 Pa. 235

JACK v. MCKEE.

Supreme Court of Pennsylvania.

October 23, 1848.

IN error from the Common Pleas of Westmoreland.

Kuhns, for plaintiff in error.

Cowan, contrà.

Oct. 23. ROGERS, J. (after stating the exception to evidence.)

The objection to the admission of the evidence is general. If, therefore, it was admissible for any purpose, there was no error. Had it been offered as a substantive claim under the money counts, it could not have been received; as, in that case, it would be necessary to produce the note or give evidence of its loss, before proving its contents. Had the testimony been opposed on that ground, no doubt the plaintiff would have declined any such intention, as it is very evident, from the whole course of the cause, such was not the view taken of it, either by the plaintiff's counsel or the court. But although not testimony for that purpose, we see no objection to it as an item of evidence showing the intimate relation of the parties to each other, and the value the testator attached to her services. It is rather the proof of a fact which may be made out without the production of the paper or proof of its loss, as was decided at this term. That such evidence may be given to show the relations of the parties to each other, appears from Postens v. Postens, 3 W. & S. 127.

The plaintiff contends the court erred in leaving it as a question of fact for the jury to find, that the note of 17th September, 1842, was not a final settlement of all accounts between plaintiff and defendant's testator, including her claim for services. We see no exception to the course pursued by the court. After stating to the jury that the settlement was primâ facie evidence of a final settlement of all matters between the parties up to that period, they properly observe that the plaintiff contends that compensation for services formed no part of the settlement in September, 1842. That she had sold land, grain, and cows to M. Jack, and that the settlement was of those transactions; that her contract was not abandoned, as was alleged by defendants, but that she went down the river for a temporary absence, with Matthew Jack's consent; and that she returned to his house and service under his direction, and remained there till his death. If there be any evidence of these facts, it was an answer to the allegation that the settlement included her claim for services under the special contract. But admitting this view of the case, the defendants contend there is no evidence whatever to rebut the primâ facie evidence, and that it was error to refer it to the jury for their decision; and that the defendant was entitled to a peremptory charge that there was a full and final settlement between the testator and the plaintiff, including the compensation for services. On the argument of this point, great stress is laid on the testimony of Elizabeth McGarr. The settlement took place on the 17th September, 1842; and the last time she was present was some time in the spring of 1842. From this it is contended that she cannot give evidence as to the intentions of the parties to the settlement. That this weakens the force of her testimony on the point that she left Jack for a temporary purpose, is most true. But it does not destroy it altogether, as she positively asserts that Ann McKee never left Jack to stay away altogether. She went, as she says, on a visit to her sister. It is true, she also adds, she went away in the fall of 1841, and returned in the spring of 1842. She went partly on his business and partly on her own. In corroboration of this belief (for perhaps it is nothing more), it appears that many letters passed between Jack and Ann McKee, which, unfortunately, though given in evidence, are not now forthcoming; and this continued up to the time of her final return and resumption of her employment as his housekeeper. It also appears in evidence, by several witnesses, that Jack was exceedingly anxious for her return, and that he applied to others to hasten that much-desired event. Now, striking out all the testimony of Elizabeth McGarr, in relation to the settlement, how does the case stand? It must be recollected, that after the verdict of the jury, we must take it as an established fact, that there was a special contract between the parties, not to take effect, so far as regards the payment for her services, until the death of Jack; that there is some proof, at least, that she left Jack's house for a temporary purpose only, that she was still considered as in his employment, and that there were other transactions and dealings to which the settlement might refer. In view of all these facts, what is the natural presumption? It seems to me the presumption is, that it was a settlement of their pecuniary transactions, and cannot, by any fair construction, be made to apply to services not yet ended, and for which payment could not be demanded until the death of Jack. And this view of the case is strengthened by the words of the settlement itself. "On final settlement," says Jack, "I stand indebted to Miss Ann McKee two hundred and eighty dollars, exclusive of two former notes whereon David Eichar was bail;" evidently referring to their pecuniary transactions. Not a word is said in reference to compensation for services, which cannot be accounted for on the supposition that they were included in the settlement. It is imputing to Jack an ignorance of the common mode of transacting business; which cannot in justice be attributed to him, as he was at least a man of ordinary capacity. So far from there being no proof proper to be submitted to a jury, it seems to me impossible to doubt that compensation for services never entered into the contemplation of either of the parties, when the settlement was made. On the hypothesis that the contract is as it has been found by the jury, a subsisting contract, it would be charging both with folly to suppose they had any such intention.

I come now to consider a point much pressed and relied on in this and a subsequent case, Bash v. Bash's Administrator, argued at this term. It is the answer of the court to the second point: "That the plaintiff is only entitled to such damages as would be a reasonable compensation for the services rendered." The court gave a negative answer to the point, and instructed the jury, that the measure of damages was the value of such lands, formerly of her father, as belonged to Mathew Jack at the time of his decease. To understand the answer, it is necessary to remark that the contract as found by the jury was, that the plaintiff was to give her services to Jack during his life, and, as a compensation, Jack was to give her at his death a farm which formerly belonged to her father, containing one hundred acres, worth, according to the estimate of the plaintiff, three thousand dollars. Jack, wholly oblivious of his contract, made his last will and testament, devising the residue of his estate, including the tract in question, to his brother and executor, William Jack. This suit is brought to recover the value of her services on a breach of that contract; and the question is, What is the measure of damages? The defendant contends it is a reasonable compensation for her services as between master and servant; the plaintiff insists she is entitled to compensation, according to the estimate of the parties themselves; or, in other words, to damages to the amount of the value of the land. We are of opinion the latter is the correct view of the question, on principle and authority. I feel some diffidence in adverting to the case of Rohr v. Kindt, 3 W. & S. 563, inasmuch as it is said to be a dictum, and one of my own. But as subsequent reflection and investigation have convinced me the law is there properly ruled and is supported by other authorities, as I shall subsequently show, I cite the case as a leading authority in this state. With all deference, it is, I think, something more than a dictum; it was intended to furnish the rule for the assessment of damages on another trial. The reversal of the cause made this disposition of the case necessary, and consequently the principles there asserted met the concurrence of the whole court. It is there ruled, that if the consideration of a covenant to convey land be the performance of an act by the vendor, and it is done, the measure of damages for the non-performance of the vendor is the value of the land. That is the case of a written agreement, this of a parol contract; a difference, however, which does not in my judgment affect the principle. In the course of the opinion this language is used in illustration of the rule, which, if sound, decides this case. "But is the value of the land," says the judge, "the measure of damages? and this may depend on circumstances. Thus, if the contract had been performed before the offer to rescind, as, for example, when A., in...