Liberty v. Haines

• Citation: 103 Me. 182,68 A. 738
• Parties: LIBERTY v. HAINES.
• Decision Date: 18 November 1907
• Court: Supreme Judicial Court of Maine (US)

68 A. 738

103 Me. 182

LIBERTY

v. HAINES.

Supreme Judicial Court of Maine.

Nov. 18, 1907.

Exception from Supreme Judicial Court, York County.

Assumpsit on account annexed by Perxede Liberty against Howard P. Haines, administrator of the estate of Samuel Haines, deceased. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Motion sustained, unless plaintiff file a remittitur.

See 64 Atl. 665.

Assumpsit on account annexed brought by the plaintiff to recover against the estate of Samuel Haines, late of Saco, York county, deceased intestate, the sum of $13,720 for services alleged to have been performed by the plaintiff for the decedent in his lifetime, and also to recover the sum of $20,000 upon an alleged special contract on the part of said decedent in his lifetime to pay the plaintiff said sum of $20,000. The alleged special contract to pay the aforesaid sum of $20,000 was not in writing.

The account annexed was as follows:

Estate of Samuel Haines to Perxede

Liberty, Dr.

To 698 weeks' services as housekeeper and assistant, and for care of clothing, washing, ironing, mending, food furnished to be taken away, and meals furnished said Haines during his lifetime, all between Oct. 1, 1889, and Feb. 22, 1903, at $20 per week..........

$13,960 00

Credit

By divers small payments each year, not exceeding $20 in any year............................

240 00

Balance..............................................

$33,720 00

The writ also contained counts as follows:

"Also for that the said plaintiff heretofore, to wit, on the 1st day of October, A. D. 1889, began to perform certain valuable services for the said Samuel Haines, to wit, acted as his housekeeper and assistant in a house furnished by and belonging to said Samuel Haines, cared for his clothing, did his washing, ironing, mending, performed the same services last named for various of his employés, furnished cooked food for said Samuel Haines to take away from said house, furnished meals for said Samuel Haines at said house, and from that time continuously each day until the 22d day of February, A. D. 1903, this plaintiff continued to perform said services for said Samuel Haines, with his knowledge, at his special instance and request, and with an expectation upon the part of this plaintiff to be paid, and upon the part of said Samuel Haines to pay, for said services. And the plaintiff avers that during each of said years said Samuel Haines paid as part payment for said services a sum not exceeding $20 in any year; that upon said 22d day of February, A. D. 1903, said Samuel Haines died; that thereafterwards, to wit, upon the first Tuesday of April, A. D. 1903, this defendant was appointed the administrator of the goods and estate that were of said Samuel Haines. And the plaintiff avers that on the 29th day of June, A. D. 1904, she filed in probate court for said county of York her said claim in writing against the estate of said Samuel Haines, supported by her affidavit, and that the same was done before or within 18 months after affidavit was filed in the probate court that notice had been given by said Howard P. Haines, as administrator, of his appointment as such, and that the same was done at least 30 days before the commencement of this suit, and that payment thereof was at the same time demanded of said Howard P. Haines in his said capacity, 'by reason of all which said Samuel Haines, in his lifetime, promised the plaintiff to pay her so much as her said services were fairly and reasonably worth,' yet neither the said deceased, in his life time, nor since his decease has the said ad ministrator, ever paid the same, to the damage of the plaintiff, as she says, in the sum of $40,000.

"Also for that the said plaintiff, heretofore, to wit, upon the 1st day of October, A. D. 1889, at the special instance and request of said Samuel Haines, in his lifetime, promised and agreed with said Samuel Haines that she would come to said Saco, and in the house to be furnished by said Samuel Haines would act as his housekeeper and assistant, care for his personal needs and comfort, attend to his washing, ironing, mending, furnish him with food to be eaten by him at said home and in her company, and also furnish him with food to be taken from said home elsewhere, would allow him to have his office for the transaction of business and as a repository for his valuable and private papers and documents at said house, would assist him in the care of his business and contribute to his personal happiness and comfort, all during such time as said Samuel Haines might live or until such time as he saw fit to make other arrangements, and the said Samuel Haines then and there, in consideration of all the foregoing, promised the plaintiff that at the termination of said services upon her part he would pay to her the sum of $20,000 in money, and, in addition thereto, would convey to her by warranty deed the aforementioned house or home. And the plaintiff avers that, in accordance with said contract and agreement, she did heretofore, to wit, upon the 1st day of October, A. D. 1889, come to Saco, go to the house furnished by said Samuel Haines, and there begun to perform and continued to perform all the services before mentioned, and so performed said services from said time up to the 22d day of February, A. D. 1903, when said Samuel Haines died. And this plaintiff avers that she has performed all and singular the stipulations and agreements in her said contract with said Samuel Haines, but that said Samuel Haines in his lifetime never paid said money or made conveyance to her of said real estate, and that this defendant in his said administrative capacity, since the decease of said Samuel Haines, though requested, has never paid the same, but refuses and neglects so to do. And the plaintiff avers that on the 29th day of June, A. D. 1904, she filed in probate court for said county of York her said claim in writing against the estate of said Samuel Haines, supported by her affidavit, and that the same was done before or within 18 months after affidavit was filed in the probate court that notice had been given by said Howard P. Haines, as administrator, of his appointment as such, and that the same was done at least 30 days before the commencement of this suit, and that payment thereof was at the same time demanded of said Howard P. Haines in his said capacity; yet neither the said deceased, in his lifetime. Dor since his decease has the said administrator, ever paid the same, by reason of all which an action has accrued to the plaintiff to have and recover, as she says, the sum of $40,000."

The next and last count was the usual omnibus count with the following specification:

"The plaintiff gives notice that under the foregoing omnibus count she will offer evidence tending to prove the performance of services for said Samuel Haines in his lifetime during the period of time between October 1, 1889, and February 22, 1903, said services consisting of care of his house, washing, ironing, mending, cooking food for him to be eaten upon the premises and to be taken elsewhere, assistance to him in the carrying on of his business, and administering to his personal happiness and physical comfort, being for services and claims made in the previous counts in this writ, and which claims have been filed in the probate court for said county of York in writing against the estate of Samuel Haines, supported by her affidavit, which was done before or within 18 months after affidavit was filed in the probate court that notice had been given by said Howard P. Haines, as administrator, of his appointment as such, and that the same was done at least 30 days before the commencement of this suit, and that payment thereof was at the same time demanded of said Howard P. Haines, in his said capacity, yet neither the said deceased, in his lifetime, nor since his decease has the said administrator, ever paid the same."

Plea, the general issue with a brief statement interposing the statute of frauds and the statute of limitations.

The plaintiff's claim as filed by her in the probate court previous to bringing suit thereon was as follows:

Estate of Samuel Haines to Perxede.

Liberty, Dr.

To 698 weeks' services as housekeeper and: assistant, and for care of clothing, washing, ironing, mending, food furnished to be taken away, and meals furnished said Haines during said time, all between Oct. 1, 1889, and Feb. 22, 1903, at $20 per week.............................

$13,960 00

Also to amount due by contract with said Haines in his lifetime to deed to said Liberty house and lot in Saco, and to pay her $20,000 in consideration of said Liberty moving into said house and caring for his clothing, doing his mending, washing, preparing food, and taking care of the rooms used by said Haines as an office, as per agreement, but land never so deeded nor amount paid and still due.............................

20,000 00

$33,960 00

Credit.

By divers small payments each year, not exceeding $20 in any year..........................................................

240 00

Balance..........................................................

$33,720 00

"This is to give notice to the administrator of the estate of Samuel Haines, late of Saco, deceased, of the above claim, in accordance with section 14 of chapter 89 of the Revised Statutes of Maine, and I hereby demand payment of the same.

"Dated at Saco this 29th day of June, A. D. 1904.

"Perxede Liberty."

This claim was supported by the affidavit of the claimant as required by the statute.

Tried at the September term, 1900, of the Supreme Judicial Court, York county. Counsel for the defense waived any objection to the plaintiff as a party, and consented that she might testify, which she did. Verdict for plaintiff for $26,266.17. During the trial the defendant took exceptions to the refusal of the presiding justice to give certain requested instructions, and to...