Markland v. Harley

• Citation: 107 Ohio App. 245,158 N.E.2d 209
• Parties: , 8 O.O.2d 177 MARKLAND, Appellant, v. HARLEY, Admr., Appellee.
• Decision Date: 01 October 1958
• Court: United States Court of Appeals (Ohio)

Page 245

107 Ohio App. 245

158 N.E.2d 209, 8 O.O.2d 177

MARKLAND, Appellant, v. HARLEY, Admr., Appellee.

Court of Appeals of Ohio, Darke County.

Oct. 1, 1958.

Syllabus by the Court

1. In an equity action by one cotenant against another cotenant for contribution, wherein plaintiff seeks to recover from the administrator of his mother's estate money expended by him for taxes, insurance, repairs, improvements and interest on property and for the use and benefit of his mother who owned a 2/3 interest in the property, on which she and her son lived, it is incumbent on plaintiff to prove not only that he made such expenditures, but also that he used his personal funds to do so.

2. Where plaintiff used proceeds from such farm, 2/3 of which belonged to his mother and 7/24 of which belonged to other heirs at law, to make such payments, repairs and improvements, alone collected the proceeds from the farm and made the expenditures, and had no other source of income, there is lacking an element necessary to recovery in an action for contribution; and there is no prejudicial error in dismissing such cause of action.

3. In such case, the failure of the trial court to make a finding respecting the incompetency of the mother is of no legal consequence in resolving the questions presented respecting an action for contribution.

4. Persons not sui juris are liable for necessaries furnished them.

5. The rule that, where a person seeking to recover compensation for services is a member of the family of the recipient, no obligation to pay for such services will be implied and that such person cannot recover therefor unless there is an express contract on the one side to perform such services for compensation and on the other side to accept such services and pay for them, has no application where the recipient is not sui juris.

6. Where, in an action by a son to recover compensation from his mother's estate for personal services rendered to her, the son shows that he rendered necessary personal services to his mother, the burden is on the administrator of the mother's estate to show that such services were rendered gratuitously.

7. Where, in such case, the recipient was not sui juris, the son was not required to apply for the appointment of a guardian for the recipient and pursue his rights in the guardianship estate under the orders of the Probate Court, and, where a few months prior to the death of the recipient a guardian of the estate was appointed, the son is not precluded from recovering for necessaries furnished the recipient because he did not present a claim in the guardianship proceedings or press a claim against the guardian.

Spidel, Staley & Hole, Greenville, for appellant.

Brumbaugh, Brumbaugh & Brumbaugh, Greenville, for appellee.

WISEMAN, Judge.

This is an appeal on questions of law from a judgment rendered in favor of the defendant by the Common Pleas Court of Darke County.

One cause of action was set forth in the original petition. During trial the court permitted the plaintiff to amend his petition by setting out two causes of action. The first cause of action was for contribution; the second cause of action was a claim for compensation for personal services rendered to the defendant's decedent. At the close of plaintiff's case, the court ruled that plaintiff was not entitled to have the first cause of action submitted to a jury, on the ground that the issues raised were equitable in nature. On the first cause of action the court found for the defendant. The court directed the jury to render a verdict for the defendant on the second cause of action.

On motion of the plaintiff the court rendered separate findings of fact and conclusions of law on the first cause of action. Before considering the findings of fact and conclusions of law, we set forth as concisely as possible the factual background which is necessary for a proper appreciation of the questions involved. William E. Markland and Sarah H. Markland, husband and wife, each owned an undivided one-half interest in a 34-acre farm in Darke County. The husband died intestate November 19, 1946, leaving his surviving spouse, Sarah H. Markland, and eight children as his sole heirs at law. At the time of the death of the husband the widow was incompetent, and she was at all times incompetent until the date of her death on November 27, 1954. On May 17, 1954 a guardian of the estate of Sarah H. Markland was appointed by the Probate Court of Darke County. The defendant was appointed administrator of the estate of Sarah H. Markland on December 24, 1954. No administration was commenced in the estate of William E. Markland until the early part of 1954. Upon the death of William E. Markland, the surviving spouse became the owner of a 2/3 interest in the land (she owned in her own right the undivided one-half interest) and each of the 8 children inherited a 1/24th interest in said land.

After the death of William E. Markland, a son, Bruce Markland, the plaintiff herein, continued to live on the farm with the mother. Bruce Markland operated the farm, paid the taxes and insurance, made improvements and repairs on the buildings and fences, paid interest on the mortgage and rendered personal services to the mother. His claim for money expended and for services rendered was disallowed by the administrator of the estate of Sarah H. Markland, and, subsequently, this action was brought.

The first cause of action was one in equity for contribution. Plaintiff sued to recover $1,782.81, being 2/3 of the amount of money expended by the plaintiff for taxes, insurance, repairs improvements and interest, etc., on the property, which represents the amount alleged to have been expended for the use and benefit of Sarah H. Markland who owned a 2/3 interest in the property. To the plaintiff's amended petition the defendant filed a general denial and, also, pleaded the statute of limitations. The cause being in equity, the trial court very properly refused to submit the question to the jury.

We set forth the essential part of the separate findings of fact and conclusions of law as follows:

'The court having sustained the plaintiff's motion for separately stating the conclusions of fact found from the conclusions of law with respect to the first cause of action, now finds with respect thereto as follows:

'1. That Bruce Markland was a tenant in common in possession;

'2. That the repairs and payments were made and performed.

'3. That Bruce Markland personally attended to these matters;

'4. That Bruce Markland handled all monies derived from the farm operation;

'5. That the decedent was possessed of no monies at the time of the appointment of a guardian, except those paid her by the administrator of her deceased husband's estate;

'6. That Bruce Markland made no payments from income to the other tenants in common; and

'7. That Bruce Markland offered no evidence whatsoever, or none upon which a presumption could be based, that the monies used by him to pay for the items set forth in the first cause of action were solely his own property. Rather, the presumption arises from the evidence that the monies used by him belonged to the tenants in common;

'and it is further found with respect thereto the conclusions of law as follows:

'That in order for Bruce Markland to prevail under his first cause of action it was necessary for him to prove that he used his own money in payment of the repairs and other items set forth. It is not enough that the prove that the repairs were made and the costs paid.

'To which findings of fact plaintiff excepts both in respect to the specific findings and to the findings of fact which have not been made which should have been made as shown by the record in this cause and also excepts to the conclusions of law based upon said findings of fact so made and which should have been made; and further to all of which the defendant by his counsel excepts.'

The failure of the court to make a finding respecting the incompetency of the defendant's decedent is of no legal consequence in resolving the questions presented respecting the first cause of action. The first cause of action was brought by one cotenant, Bruce Markland, the owner of a 1/24th interest in the land, against the estate of a deceased cotenant, Sarah H. Markland who owned a 2/3 interest in the land. It is sufficient to state that after a careful examination of the evidence the conclusion is inescapable that the plaintiff used the proceeds of the farm, 2/3 of which belonged to the decedent and 7/24ths of which belonged to the other heirs at law, to make the payments, repairs and improvements. The plaintiff never accounted to the cotenants. He alone collected the proceeds from the farm and made expenditures. The plaintiff had no other source of income. There was, as found by the trial court, a failure of proof of one essential element in the plaintiff's case. It was incumbent on the plaintiff to prove not only that he made such expenditures, but also that he used his personal funds to do so. We find no prejudicial error in dismissing the plaintiff's first cause of action.

In the second cause of action plaintiff claims compensation for personal services rendered to the decedent. Plaintiff in his amended petition alleges an express contract whereby plaintiff was to be compensated for such services. There was a total failure of proof respecting this allegation. Having failed to prove express contract, the defendant, appellee herein, contends that there can be no recovery under the rule laid down in the well-known case of Hinkle v. Sage, 67 Ohio St. 256, 65 N.E. 999, as modified by Merrick v. Ditzler, 91 Ohio St. 256, 110 N.E. 493, respecting the degree of proof. The first paragraph of the syllabus in the case of Hinkle v. Sage, supra, is as follows:

'In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for...