McCollough v. Lee (In re Hollis' Estate), No. 46594.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 16 N.W.2d 599,235 Iowa 753
• Decision Date: 12 December 1944
• Docket Number: No. 46594.
• Parties: In re HOLLIS' ESTATE. McCOLLOUGH v. LEE.

235 Iowa 753
16 N.W.2d 599

In re HOLLIS' ESTATE.
McCOLLOUGH
v.
LEE.

No. 46594.

Supreme Court of Iowa.

Dec. 12, 1944.

Appeal from District Court, Hamilton County; H. E. Fry, Judge.

A proceeding in probate on a claim filed against the estate of the deceased, on an implied contract for services rendered the deceased. On a trial to a jury a verdict was found for claimant for $900. In passing upon the defendant's motion for new trial, the court gave claimant the choice of remitting $400 from the verdict and accepting judgment for $500 with interest and costs, or the granting of defendant's motion. Upon claimant's refusal to so elect the court ordered the verdict set aside, and granted a new trial. The claimant has appealed. Affirmed.

[16 N.W.2d 600]

Sterling Alexander, of Webster City, for appellant.

O. J. Henderson, of Webster City, for appellee.

BLISS, Justice.

The claim was originally filed in two counts. The first being based on decedent's oral promise to bequeath claimant $1000, and her breach thereof, by bequeathing but $100, thereby leaving a balance of $900 owing claimant. The second count, after amendment, was based on quantum meruit for alleged services rendered over a period of twenty or more years in decedent's household, of the reasonable value of $900, no part of which had been paid. Near the close of the case, and apparently not in the presence of the jury, claimant dismissed count one.

Decedent and her husband operated a farm near Webster City for many years. In 1916 they took into their home out of the State School at Mitchellville, the claimant. She was a stranger to them and about 17 years old. She worked in the home for about a year for wages which she admits receiving. After working elsewhere for a time she married and moved to Minnesota. Later she and her family moved onto a farm, about ten miles from the Hollis home, where they lived for about fourteen years, or until they moved to Webster City. In 1940 the decedent and her husband, Frank Hollis, left the farm and moved to Webster City. There the husband died in February, 1942, and the decedent, in November of that year.

The claimant testified, and there is some corroboration by others, that during the time Mr. and Mrs. Hollis were living on the farm and in Webster City, she was at their home many times each year, performing household services consisting of laundry work, cleaning, and customary work about the home, and sometimes personal care of the decedent.

The executrix admits that occasionally the claimant, during the last year or two of decedent's life, performed some services in the Hollis home, but alleges that for any and all services which she performed for the decedent or the latter's husband, at any time, she had been fully paid.

Since there may be another trial upon this claim we will not review the testimony nor discuss it further than is necessary for a decision of the particular issues submitted on the appeal.

Defendant's motion for new trial was based upon thirteen separate grounds, each and all of which were expressly overruled by the court, except the third ground, alleging that ‘the verdict is grossly excessive’, which was sustained.

There was evidence, much of it by direct testimony of the claimant, that she had been paid at different times for the services performed by her, by Mr. Hollis, while he lived, or by the decedent after his death. Neither the testimony of the claimant nor any other evidence discloses the specific total amount the claimant was paid. But there is evidence by which the jury could have computed that claimant was paid a substantial sum for services performed. The court instructed the jury that it should credit the defendant for any such sums it found had been paid. The jury allowed claimant her full claim of $900, without crediting thereon any payments.

Claimant testified as follows: ‘When I would go up there to wash, Grandpa would give me fifty cents, and if they had lard more than they needed, I took two or three pounds of lard or something like that. They figured that was my payment at that time.

‘Q. What do you mean Mrs. McCollough? A. Well, that was supposed to have been payment for what I did, or my services.

‘Q. How often were you there, tell us that? A. Well, I was there once or twice a month all of the time.

‘Q. While you lived six miles out of town? A. Yes.

‘Q. Who paid you for that? A. Part of the time Grandpa would give me fifty cents or a dollar, and part of the time he didn't give me anything.

‘Q. How often didn't he give you anything? A. I never kept track of it.

‘Q. Well, if you don't know, the jury cannot be expected to. At times when he paid you a dollar, you took that as pay for your work, didn't you? A. Yes.

‘Q. Did Mr. Hollis pay you for those times? A. Well, if he did, it was just

[16 N.W.2d 601]

like other times. He gave me fifty cents or a dollar.

‘Q. Did he pay you when you were out there and did the work? A. Some of the times and sometimes he didn't.

‘Q. Sometimes he did pay you as much as a dollar for coming out there? A. Yes.

‘Q. Did you take it? A. Yes. * * *

‘Q. Mr. Hollis was the paymaster? A. Well, he was when she could get it across for him to.

‘Q. Well, whenever he paid you-or whenever you were paid, he was the fellow that paid you wasn't he? A. He was up until the last year of his life.

‘Q. Of course, after he got so sick, and after his death, he couldn't pay you; but during all those years out in the country when you would go to see them from time to time, and he gave you a dollar or fifty cents, he was the fellow that paid you? A. Yes. * * *

‘A. I went to visit and when they needed help, I went to help.

‘Q. Did they pay when you went to help? A. Yes.

‘Q. Did you get paid when you went there to help or didn't you? A. I didn't get what I should have had. * * *

‘A. I went every two weeks to wash and clean and spend all day. I got fifty cents for the washing.

‘Q. The washing didn't take more than about half a day, did it? A. No.

‘Q. Don't you think that was pretty fair? A. No, I don't.

‘Q. Did you make any objection to it? A. No, I didn't tell them anything about it.

‘Q. That was while Grandpa Hollis lived, and he paid you? A. Yes. * * * Grandpa paid me for the washing while he lived, but after Grandpa died, I didn't get it. I didn't ask anybody for it. * * *

‘Q. You remember at the last trial you said that Hollis paid you when you did any work for them? A. I didn't remember as to that. If it is in the record, it is possible that I said it. I think I meant, at that time, if I remember right, that I was paid for the washing but as to the other work, there was lots of other work that I did that I didn't get paid for. * * *

‘Q. After Mr. Hollis died, every time you went up there and did the washing, she paid you? A. Well, there were a few times she didn't. She didn't pay me every time.

‘Q. But every once in a while she did pay you? A. Yes.'

From her own admissions, as above set out,-and the record discloses no reason why they should not have been believed-the jury could have found that during the 18 or 20 years of her service she did the washing at the Hollis home every two weeks and that she was paid for the same, although there was other work for which she was not paid. These payments over these years would amount to a substantial credit. The appellant makes a claim that the jury might have been warranted in finding these payments were but gifts to her. At one place in her testimony she said that occasionally when Mr. Hollis gave her 50 cents or a dollar for her services she considered the ‘payments' as gifts. The jury could not have found these amounts to have been gifts without disregarding the instructions to the jury.

I. We held in Re Estate of...