Jackson v. Ely
| Decision Date | 17 December 1897 |
| Parties | JACKSON v. ELY. |
| Court | Ohio Supreme Court |
Error to circuit court, Wayne county.
This action was brought in the court of common pleas of Wayne county by Hannah Jackson, plaintiff in error, to recover of John Ely, executor, the defendant in error, as executor compensation for personal services rendered by her in ‘nursing, feeding, washing the person and clothing’ of the testator, while he was ‘sick and confined to his room’ during the last years of his life. The executor, by answer, set forth that by ‘divers and numerous receipts, discharges, and payments in full,’ had between Mrs. Jackson and his testator the last of which occurred only three days before the testator's death, all claims that she might have had against the testator had been fully paid. He also set forth a settlement between himself and Mrs. Jackson, had of course after the death of the testator. The cause was tried to a jury, and a verdict rendered for Mrs. Jackson, upon which the court of common pleas gave judgment. This judgment was reversed by the circuit court for error committed by the court of common pleas in allowing Mrs. Jackson to testify and in its charge to the jury. Mrs. Jackson thereupon instituted proceedings in this court to reverse the judgment of reversal. Affirmed.
1. A written instrument in the following terms: -is not a mere receipt, but contains an agreement to the effect that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other. Its terms clearly import that all matters of account existing between the parties at the time were included in the settlement, and as parol evidence which tends to prove that certain matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible.
2. Conversations and admissions concerning which a party may testify under the provision of the fourth exception to section 5242, Rev. St., are those orally made by him. This exception does not authorize him to testify concerning a written statement in the nature of a settlement between the parties that may be adduced against him on the trial.
John C. McClarron and Adair & Adair, for plaintiff in error.
Yocum & Taggart, for defendant in error.
BRADBURY, J. (after stating the facts).
The record discloses only two questions that we think are of sufficient importance to require consideration, both of which rise out of the testimony of Mrs. Jackson, plaintiff in error. The action was brought by Mrs. Jackson to recover the value of personal services bestowed by her on John Ely, the testator, during the last two years of his life. The services began in May, 1889, and continued until his death, in April, 1891. He had reached an extreme old age when the services began, and they were such as an old and failing person might be expected to require. She moved into a house belonging to him, and, as she contends, under a contract which provided merely for his board and the care of his room, and, perhaps, for his washing, but not for nursing and other personal attentions. No other person than herself and family was in or about the house, or in a situation to bestow on him such personal attention as one of his age might ordinarily require, and from the time she began the occupancy of his house, and to board him and care for his room, whatever personal attention he received was given by her, except at a certain period or periods, when severe illness required the services of a nurse. From time to time during the period she was there, she and the testator came to an agreement, and he paid her the sum agreed to be due her, taking on each of these occasions-22 or 23 in all-an instrument signed by her, all of which were alike in substance, and very nearly alike in form, their phraseology, differing, where at all, only in the most immaterial particulars, and in many instances one is an exact copy of another, except as to date and amounts. The following is a sample: This is the last of the series, and was executed and delivered to the testator only three days before his death. A week later, and after the death of the testator, his executor, who it seems bore the same name, came to a settlement with Mrs. Jackson, at which time the following instrument was executed by Mrs. Jackson, and delivered to him: On the trial, this series of instruments were put in evidence by the executor in support of his contention. After the defendant had closed his evidence, the plaintiff, Mrs. Jackson, was called as a witness in her own behalf, and over the objection of the defendant, founded on her competency as a witness, as well as the inadmissibility of her testimony, she was permitted to testify touching the items that were included in the settlements evidenced by these writings. Her attention was called to them one by one, until she had thus explained substantially all of them. Taking, for example, No. 5 of the series, which reads: This was handed to her, and she testified in regard to it:
Whatever the general rule may be as to the reception of parol evidence to explain a mere receipt, it is not admissible, at least in Ohio, to vary the terms of a contract, although the contract should be included in an instrument which was also a receipt for money or property. Stone v. Vance, 6 Ohio 246;Bird v. Hueston, 10 Ohio St. 418, 421, 430. The line that divides receipts open to parol explanation from written contracts which nothing can be added to or taken from by parol evidence has not been satisfactorily established, and cases can be found which it is extremely difficult, if not...
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Jackson v. Ely
...57 Ohio St. 45049 N.E. 792JACKSONv.ELY.Supreme Court of Ohio.Dec. 17, Error to circuit court, Wayne county. This action was brought in the court of common pleas of Wayne county by Hannah Jackson, plaintiff in error, to recover of John Ely, executor, the defendant in error, as executor, comp......