Miller v. Armstrong

• Decision Date: 15 February 1904
• Citation: 98 N.W. 561,123 Iowa 86
• Parties: THOMAS S. MILLER, Appellee, v. ELLEN ARMSTRONG, Executrix, Appellant
• Court: Iowa Supreme Court

98 N.W. 561

123 Iowa 86

THOMAS S. MILLER, Appellee, v. ELLEN ARMSTRONG, Executrix, Appellant

Supreme Court of Iowa, Des Moines

February 15, 1904

Appeal from Wapello District Court.--HON. C. W. VERMILLION, Judge.

SUIT on a claim for board, washing, nursing, and attendance, and for the care and keeping of horses and for money loaned. There was a verdict and judgment for the plaintiff, from which the defendant appeals.

Reversed.

W. W Rankin and McElroy & McElroy for appellant.

Steck & Smith for appellee.

OPINION

SHERWIN, J.

The items of account upon which this suit was founded were alleged to have been furnished the deceased, Elizabeth Hale from August 17, 1892, to March 31, 1897, the largest one of which was for her board, washing, and the attendance of a servant, during that period. That the deceased lived with plaintiff and his family during the greater part of the time stated is undisputed, the evidence for the defendant tending only to show that from some indefinite time in 1896, up to the 31st day of March, 1897, she spent a part of the time at the home of a relative near by; but the length of each sojourn at this place, and the particular time thereof, were not shown. The evidence tended to show that in 1893, while she was living with the plaintiff, the deceased was ill for many weeks, and that during such illness the plaintiff provided her with a nurse, for which a charge was made in the account filed herein. Another item of the account was a charge for money loaned to the deceased in 1896. Both of these items are challenged on the ground that they are in no proper sense parts of a continuous, open, current account, and because thereof it is contended that the court erred in instructing the jury that the account was continuous, open, and current.

We think there was no error in the instruction. There was evidence tending to show that the deceased never had such an illness, and it was for the jury to determine whether the service alleged was ever rendered her; but if it was in fact and the jury so found, no question remained as to the time thereof; and we do not doubt that the charge therefor, if found to be correct, constituted a part of a continuous, open, current account. We have held that a charge for the care of a horse may properly be included in and become a part of an account for board, lodging, and office rent, and we see no reason why the care of a person during illness is not entitled to at least as great consideration. Tucker v. Quimby, 37 Iowa 17; Wendeling v. Besser, 31...