Jackson v. Mull

• Decision Date: 19 November 1895
• Citation: 42 P. 603,6 Wyo. 55
• Parties: JACKSON v. MULL
• Court: Wyoming Supreme Court

42 P. 603

6 Wyo. 55

JACKSON v. MULL

Supreme Court of Wyoming

November 19, 1895

ERROR to the District Court for the county of Laramie, HON. RICHARD H. SCOTT, Judge.

This was an action brought by Mary Jackson against Braxton P. Mull upon two causes of action, the first of which was a claim for work, labor, and services of the plaintiff in the care custody, and nurture of Stella Mull, a minor child of the defendant. The second cause of action was a claim for money expended for necessaries purchased for the child, such as clothing, shoes, and wearing apparel, school-books, paper and other materials to enable her to attend school, and medical attendance. In the district court judgment was rendered for defendant upon the first cause of action, and for the plaintiff upon the second cause of action, for a portion of her demand, the remainder being disallowed on the ground that action thereon was barred by the statute of limitations. Plaintiff prosecuted error. The material facts are stated in the opinion.

Judgment affirmed and reversed.

W. R Stoll, for plaintiff in error.

The services of plaintiff were continuous. The agreement between the parties contemplated continuous services, and a continuous furnishing of necessaries to the child. The services were performed, and the necessaries provided, under and by virtue of a contract made at the death-bed of the child's mother, and the contract was performed by the plaintiff with fidelity, and without objection from defendant during the entire period of infancy and until the girl became old enough to be married or perform a woman's work. The statute of limitations does not run under such conditions. (Angell on Lim., 120; Frankoviz v. Ireland (Minn.), 26 N.W. 225; Moser v. Crooks, 32 Iowa 172; Schoonover v. Vachon, 121 Ind. 3; Gould v. Whitmore, 79 Me. 383; Hall v. Wood, 9 Gray, 60; Schoch, Adm'r., v. Garrett, 69 Pa. 144; Skyrme v. O. M. & M. Co., 8 Nev., 218; Schmieding v. Ewing, 57 Mo. 78; Lamb v. Hanneman, 40 Iowa 41; Carroll v. McCoy, id., 38; Clery v. Burns, 53 Miss. 171; Carter v. Carter, 36 Mich. 207; Hillebrands v. Nibbelink, 40 id., 646; Wendeling v. Besser, 31 Iowa 248; Graves v. Pemberton, 29 N.E. 177.)

Edgar W. Mann, for defendant in error.

There appears to have been no actual agreement or concert of minds between the parties to this case, and their relations do not appear to have been of a friendly character. Defendant denies making any agreement as alleged by the plaintiff. Under all the circumstances, there was nothing more than an implied contract to pay such an amount as the plaintiff might expend for the child for necessaries, and an action might have been brought at the end of the first year. Where an account only exists on one side, and is composed of many items contracted and made at different times, the statute of limitations will run from the date of each item, unless agreed and understood by both parties that the same is to be kept open and continue as one account. (Wood on Lim., 1st. Ed., 120, 278; Angell on Lim., 6th Ed., 148; Kimball v. Brown, 7 Wend. 321; Coster v. Murray, 5 Johns, Ch., 522; Crum v. Higold, 32 Ill.App. 282; Thompson v. Brown, 50 Mo. App., 314; Bennett v. Davis, 1 N.H. 19; Miller v. Colwell, 5 N.J.L. 577 or 665; Buntin v. Lagow, 1 Blackf., 373; Adams v. Patterson, 35 Cal. 122; Davis v. Gorton, 16 N.Y. 255; Mims v. Sturtevant, 18 Ala. 359; Butler v. Kirby, 53 Wis. 188; Mosgrove v. Golden, 101 Pa. 605.) If the right to recover is based upon an entire contract, the action should not be brought until the contract is fully performed. (Davis v. Maxwell, 12 Metc, 286; Thayer v. Wadsworth, 19 Pick. 349; Stark v. Parker, 2 id., 267; Jacks v. Phillips Co., 25 Ark. 64; Isaacs v. McAndrew, 1 Mont. 437; Larkin v. Buck, 11 O. St., 561; Allen v. Curles, 6 O. St., 505; Wood on Master & Serv., 84; Bank v. Irr. Dist., 40 P. 45.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

In this case the petition of Mary Jackson, the plaintiff, alleged as a first cause of action that Braxton P. Mull, the defendant, was indebted to her in the sum of eighteen hundred and seventy-two dollars for work, labor, and services in the care, custody, and nurture of one Stella Mull, minor child of the defendant, performed at the request of the defendant between the 16th day of November, 1879, and the 16th day of November, 1892, a period of thirteen years; and for a second cause of action, that during the same period of time the plaintiff at the request of the defendant provided for said child necessaries for her use; to wit, clothing, shoes, and wearing apparel to the value of one thousand five hundred and sixty dollars, school-books, paper, and other materials necessary to enable said minor to attend school, to the value of seven hundred and two dollars, and medical attendance to the value of one hundred dollars, all of the value of two thousand three hundred and sixty-two dollars. It is stated in the petition that no copy of an account for the services thus performed or of the necessaries so furnished is attached, for the reason that no account was kept of the same; the divers expenditures having been paid for in cash at the time the articles were furnished and the expenditures made.

The defendant in his answer admitted the performance of the work, labor, and services, but denied that they were performed at his request; and alleged as a separate defense that they were performed voluntarily upon the part of the plaintiff upon the sole consideration of the benefit the society of said child and her services would be to the plaintiff. He also admitted the furnishing certain necessaries, without the specification of their nature or character, but not of the value alleged in the petition, and denied every other allegation contained in the second cause of action. As a separate defense to said second cause of action it is also alleged that the said necessaries were furnished by the plaintiff voluntarily and not upon request of the defendant, but upon the undertaking of the plaintiff to keep and maintain the said child at the expense of the plaintiff. The statute of limitations is pleaded to both causes of action for any claim of the plaintiff accruing prior to the 10th day of January, 1887. The case was tried to the court without the intervention of a jury, and upon the testimony the court found generally for the defendant upon the first cause of action, and that upon that cause of action the plaintiff take nothing. Upon the second cause of action the finding was for the plaintiff, except as to so much of her claim which accrued prior to January 10, 1887, which it was found was barred by the statute of limitations, and she was allowed eight dollars per month from that date until the commencement of the suit for clothing, shoes and wearing apparel furnished by her to said child, and a separate allowance was made for school-books and stationery, and judgment for the total amount with the costs of the action rendered in favor of the plaintiff. She assigns error in the finding and judgment upon the first cause of action, and also upon the second cause of action, contending that the court erred in holding any of the claim to be barred.

The plaintiff is the grandmother of the child. When the mother of the child, the late wife of the defendant, who was the daughter of the plaintiff, was lying at her home in this county sick, and shortly before her death, she, it seems quite clear from the testimony, expressed the desire that her mother, the plaintiff, should take the child Stella, who was then young, and that the defendant assented to it. This much is apparently conceded. The defendant admits and so testifies that his wife told him that she had given Stella to her mother, and further that he assented to whatever arrangement he understood as having been made, to pacify his wife. The plaintiff, Mrs. Bailey, one of her daughters, and Mrs. Davidson each testify respecting certain conversations, and it is claimed that there were two between the mother of Stella, Mrs. Jackson, and Mr. Mull. These conversations were denied by the latter, and it was otherwise attempted to be shown that Mrs. Davidson was not present at any of the times when it is alleged the conversations occurred.

Mrs. Bailey says, in substance, that her sister wanted him (Mr. Mull) to support the child, give her a good education, and her mother (Mrs. Jackson) was to look after the child, make her home the home of the child, and that Mr. Mull was to pay the expense. When asked what Mr. Mull said, she replied: "He was willing, he consented to it." She further testified: "She wanted my mother to take the child and take care of her, clothe and care for her as if she was her own child as long as she lived." And again: "To take care of her until Stella married or my mother died, then she wanted my sister to take her." And being again asked what Mr. Mull said, she testified that he said, "Oh! Aggie, I will do anything."

Mrs Jackson testified that the subject was mentioned to her on two occasions. That Mrs. Mull called her husband to the bed and wanted to know how it was with him about Stella; that she wanted her mother to take her, raise her, and care for her; that she said, "Charlie, you must educate and clothe Stella," and that he said he was perfectly willing to do everything. She testified further in answer to questions of counsel: "She wanted me to raise Stella and care for her; I told her I would if Charlie was willing," and when asked what Mr. Mull said: "I remember very well; he was perfectly willing to do whatever his wife said; she made the arrangement about Stella, and he was willing." As to her exact words she testified: "She said in so many words that she wanted me to take Stella...