Marcotte v. Harrison

• Decision Date: 02 April 1982
• Docket Number: No. 79-251-A,79-251-A
• Citation: 443 A.2d 1225
• Parties: 34 UCC Rep.Serv. 219 Leroy V. MARCOTTE as Administrator of the Estate of Albin A. King v. Eugene HARRISON et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1225

443 A.2d 1225

34 UCC Rep.Serv. 219

Leroy V. MARCOTTE as Administrator of the Estate of Albin A. King v.Eugene HARRISON et al.

No. 79-251-Appeal.

Supreme Court of Rhode Island.

April 2, 1982.

David J. Kehoe, Warwick, for plaintiff.

Gunning, LaFazia & Gnys, Inc., Robert W. Smith, Providence, for defendants.

OPINION

SHEA, Justice.

This is a civil suit in which the plaintiff-administrator d.b.n.c.t.a., Leroy V. Marcotte, ¹ proceeding on behalf of the estate of Albin A. King(the estate), seeks to enforce the payment of two promissory notes, one for $8,000 and the other for $1,500, given by the defendants, Eugene and Doreen M. Harrison, to the decedent in 1972.The defendants counterclaim against the estate under a theory of implied contract to recover the reasonable value for care and services which they rendered to the decedent during the year preceding his death in May 1973.They fix the value of their services at $12,000.These issues were tried before a jury of the Superior Court.

In the course of the trial, a directed verdict was granted in favor of the estate affirming the Harrisons' liability and the amount owing to the estate on the $1,500 note.The court entered judgment for $1,500 plus interest at the stipulated annual rate of 6 percent, for a total of $2,083.17.The trial justice also directed a second verdict in the estate's favor on the $8,000 note concerning liability, reserving for the jury's judgment, however, the issue of the amount due.The jury found the Harrisons' indebtedness on the $8,000 note to be $10,274.94, including the unpaid principal and interest.The jury further found in favor of the Harrisons' counterclaim, awarding $6,500 for their care of and services to Mr. King.However, the trial justice granted the estate's motion for a new trial on the counterclaim.

The Harrisons appeal from the directed verdict in the estate's favor, and they appeal the denial of their motion for a new trial and/or a remittitur with regard to the $8,000 note.Further, the Harrisons appeal the granting of the estate's motion for new trial on their counterclaim.The estate cross-appeals the denial of its motion for a directed verdict on the Harrisons' counterclaim.We affirm the actions of the trial justice.

The facts of this case are rather complex.Some factual background will be necessary in order to place in the proper context the events giving rise to the litigation.As we determine the issues presented by the partieswe will refer to additional facts as necessary.

The decedent Albin King first met the Harrisons in the early fall of 1971.The meeting involved the sale by King to the Harrisons of a cabin plus surrounding acreage located in Foster, Rhode Island, which was the King family's ancestral home.By the time of this sale, Albin King was the last surviving member of his family.The Harrisons bought the Foster property intending to construct modern living quarters out of the cabin for themselves and their five children.Their reconstruction and rehabilitation were quite extensive.

Because of his sentimental attachment to the property, King was deeply interested in the Harrisons' plans.He periodically visited to view their progress.In addition, the Harrisons kept King regularly informed about the building and restoration.On his visits to the property King was sometimes accompanied by his longtime friend, Charlotte O. Botticher.He and Miss Botticher were also occasional dinner guests in the Harrisons' home.A friendship among the Harrisons, King and Miss Botticher developed as the weeks passed.

Soon after the Harrisons moved into the reconstructed house in March 1972, King, then about ninety-one years old, took seriously ill and was hospitalized.Three or four weeks later, Charlotte Botticher approached the Harrisons on behalf of King to request that they allow him to convalesce in their house, thereby avoiding the necessity of sending King to a nursing home.The Harrisons agreed.It was the Harrisons' impression at the time that King's period of initial recuperation would be relatively short, that is, until he could "get his strength back."Ultimately, however, King spent more than a year in Foster before his death on May 26, 1973, having arrived in Foster after his discharge from the hospital on May 6, 1972.

Early in King's stay in Foster, in mid-May 1972, he informed Eugene Harrison that the city of Providence had cited him for certain housing-code violations on King's two-family residence located at 6 Sumter Street in Providence.He offered to sell the property to Eugene Harrison because he, King, could not take care of it any longer.At first Harrison was reluctant to buy it, but he ultimately agreed.To finance the transaction, King and the Harrisons executed the now-contested $8,000 promissory note dated May 31, 1972.The note was made payable over fifteen years at 6 percent per annum in equal monthly installments of $67.51, commencing on December 1, 1972.Later, on June 19, 1972, the Harrisons executed the second note to King for $1,500, payable with stated interest of 6 percent per annum.The second note provided:

"For materials and shingles, paint, doors and casings on King Road, Foster, R.I., and also repairs, shingles and renovation and paint at 6 Sumter (Street), Providence, R. I., to satisfy the City of Providence.To be paid with insurance claim or sale of 6 Sumter Street, Providence, R.I., whichever comes first."

Repayment of this second note was conditioned upon the occurrence of one of two events: receipt of certain insurance proceeds ² or the sale of the Providence property.Both notes bear the signatures of Eugene Harrison and Doreen Harrison.

The Harrisons immediately began renovation of the Sumter Street property.Eugene Harrison estimated that he invested a further $5,000 to $6,000 in the renovations.That property was completely destroyed by fire in January 1973.The Harrisons did carry appropriate insurance as required by statute, ³ and in February 1973they received a check from the insurer for $15,000, naming the Harrisons and King as payees.⁴

At the time this case was tried, the Harrisons had made six payments on the $8,000 note and had repaid nothing on the $1,500 note.

We turn first to the matter of the $1,500 promissory note.The Harrisons argue that the trial justice erroneously directed a verdict for the estate regarding both the Harrisons' liability and the amount due thereon.They specifically point out that when suit was filed on March 7, 1974, the note was not yet due and payable because neither of the two events, either of which was a condition precedent to repayment, had yet occurred.Since neither of the conditions had occurred before suit was filed, any claim to the note would be premature.

In considering a motion for a directed verdict, this court must do what the trial justice is called upon to do in the first instance.We examine the evidence and all inferences reasonably flowing therefrom in the light most favorable to the nonmoving party.We do not consider the credibility of the witnesses or the weight of the evidence.We then determine whether or not there is evidence for the jury to consider which would warrant a finding in favor of the nonmoving party.If we conclude that there is evidence supporting that party or that there is evidence on which reasonable minds could differ, then the jury is entitled to decide the facts of the case.Pray v. Narragansett Improvement Co., R.I., 434 A.2d 923(1981);Johnson v. Palange, R.I., 406 A.2d 360(1979).

The record reflects that the estate made claim to the $1,500 note from the outset.At trial the estate introduced the note as a full exhibit.Eugene Harrison admitted that his signature and his wife's signature appear on the note as makers.The Harrisons received the $1,500 from King.Harrison admitted that they had repaid nothing on this note.He testified that reference in the note to an insurance claim dealt with an unconnected automobile insurance claim of the Harrisons that would, when paid, serve to mark the time when the note was to become due and payable.He admitted as well that he had received those insurance proceeds in the amount of $1,500 in early 1978.Harrison also established that after its destruction by fire the Sumter Street property had been sold by the city of Providence for delinquent taxes.It is uncertain just when that transaction occurred.Nevertheless, by the time of trial, both events that were conditions precedent had in fact occurred.

In ruling on the estate's motion for a directed verdict, the trial justice recited these facts.He concluded that the Harrisons had no defense to the note and that it was therefore due and payable.He said it was immaterial that the note may or may not have been due at the time suit was instituted.He noted that no proper objection had been made to the introduction of the note into evidence or to the testimony relating to it.

The Harrisons argue to this court that they in fact did properly object.Our review of the record indicates that defense counsel objected to evidence regarding that note on the ground that it was premature.This objection was made at the time when the estate's counsel asked Eugene Harrison if he had received payment of his outstanding automobile insurance claim.The objection appears in the record only after the note was admitted as a full exhibit and testimony had been taken with reference to it.We conclude that the evidence concerning the $1,500 note was properly admitted and that it was a proper basis for directing a verdict against the Harrisons on this issue.

The Harrisons' contention that suit on the $1,500 note was premature required more than just an objection made in the course of the trial.In the Harrisons' answer to the complaint they admitted they had executed the note and they asked that it be set off against their counterclaim.To raise the issue of prematurity and to...