Moore v. Renick

• Decision Date: 02 June 1902
• Citation: 68 S.W. 936,95 Mo. App. 202
• Parties: MOORE v. RENICK.
• Court: Missouri Court of Appeals

68 S.W. 936

95 Mo. App. 202

MOORE v. RENICK.

Court of Appeals at Kansas City, Missouri.

June 2, 1902.

SERVICES — AGREEMENT TO PAY — PRESUMPTION — FAMILY RELATION — EFFECT — WITNESSES — COMPETENCY — PLEADING — LIMITATIONS — INSTRUCTIONS.

1. Rev. St. 1899, § 4652, provides that, in an action against an administrator, the other party shall not be admitted to testify, except as to acts done or contracts made since the probate of the will and the appointment of the administrator. Held, in an action against an administrator to recover for board and services rendered his decedent, where a witness for defendant testified that plaintiff told him, after the administrator's appointment, that he did not intend to charge therefor, plaintiff could testify in rebuttal that he did not make any such statement.

2. Though the ordinary presumption of an agreement to pay for valuable services rendered does not obtain where the parties occupy the family relation, the mere existence of the relation of brother and sister is insufficient to authorize a presumption that the services are gratuitous, nor will the party receiving them be absolved from liability to pay therefor, if the facts indicate an agreement on his part to do so.

3. In an action by plaintiff to recover for services rendered his deceased brother-in-law during his lifetime, where the evidence as to an agreement on the part of the deceased to pay for the services was conflicting, it was error to charge that plaintiff was entitled to recover for all services rendered decedent, whether rendered by him himself or by his wife.

4. In a suit to recover for services rendered a decedent in his lifetime, a charge that all the items which had accrued five years before the commencement of the suit were barred by limitations was properly refused; the account being a running and continuous one, and it being fairly inferable from the conduct of the parties that the whole was regarded as one account.

5. In an action to recover for services rendered a decedent in his lifetime, an agreement whereby decedent was to pay therefor by work and labor could not be shown under a general denial or simple plea of payment.

6. In an action to recover for services rendered a decedent in his lifetime, an instruction that, if during the time plaintiff's account accrued he was indebted to deceased and paid the deceased such indebtedness, then upon such payment there "was in law a presumption of fact from which the jury were authorized to infer [presume] that all the items of the indebtedness

between plaintiff and deceased at that time were finally settled," was properly refused as authorizing a presumption upon a presumption.

Appeal from circuit court, Lafayette county; Samuel Davis, Judge.

Action by David J. Moore against Columbus Renick, administrator of the estate of Ephraim F. Renick, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action which originated in the probate court. The wife of the plaintiff was the sister of the deceased. The evidence adduced by the plaintiff tends to prove that the deceased was an unmarried man of considerable means, and that he had been making his home with his father and mother until after the mother's death, which took place in 1885, after which occurrence he and his father concluded to break up housekeeping. He then went to plaintiff, and made that fact known, at the same time inquiring of him (plaintiff) whether or not they could stay there, to which inquiry plaintiff answered that they could, and thereupon the deceased replied that, if they could do so, he (the deceased) would make it all right with him. It is in effect conceded that the deceased made his home with plaintiff from February, 1885, until his death, which happened in January, 1889. It further seems from the evidence that the deceased kept at the plaintiff's residence from two to four horses during the time he made his home with plaintiff. The plaintiff's evidence further tended to prove that the plaintiff's wife, during the time the deceased lived with plaintiff, did his mending, washing, etc. The plaintiff's evidence tends to show that during that time the deceased did no work for plaintiff, except some chores, which he performed occasionally, when agreeable to him; but that of the defendant tends to show that he did considerable work at times, such as gathering corn, putting up ice, feeding stock, etc. The latter evidence further tended to show that the deceased made several loans of money to plaintiff, for which no interest was charged. The reasonableness of the charge of $12 per month for the services rendered deceased by plaintiff was not disputed. The action is on an account against the decedent's estate to recover $2,001 for board, room, washing, etc. The answer was a general denial, coupled with a plea of the statute of limitations and of payment. There was a trial in the circuit court, where the plaintiff had judgment, and the defendant appealed.

John Welborn and William Aull, for appellant. John S. Blackwell & Son and W. H. Chiles, for respondent.

SMITH, P. J. (after stating the facts).

1. The defendant objects that the trial court erred in permitting the plaintiff to testify at the trial of the case. It appears from the record that James Renick, a witness who had been called by the defendant, testified in substance that plaintiff had come to his (witness') house after the appointment of the defendant as administrator, and had stated to him that he did not intend to charge the deceased any board. The plaintiff, in response to a question asked him by his counsel as to whether or not he had made such statement, testified that he had not. As the plaintiff's testimony was in rebuttal, and related to a conversation which took place between him and the witness Renick after the appointment of the administrator, under the statute, it was properly admitted. Rev. St. 1899, § 4652; Callahan v. Riggins, 43 Mo. App. 130; Stanton v. Ryan, 41 Mo. 510; McGlothlin v. Henry, 59 Mo. 213; Martin v. Jones, Id. 187; Wade v. Hardy, 75 Mo. 394; Eyermann v. Piron, 151 Mo., loc. cit. 115, 52 S. W. 229.

2. The defendant further objects that the court erred in giving plaintiff's first instruction, which told "the jury that, when one person renders valuable services for another person, the law makes the other person liable for whatever sum such services are reasonably worth; and if you believe, from the evidence in this case, that said Renick made his home with said Moore during the time charged for in the account, and that he received the care and attention and the services charged for in said account, then the law makes his estate liable for whatever such care and attention and such services are reasonably worth, and you will find for the plaintiff for whatever sum you believe, from the evidence, the same were worth, not to exceed the sum of $1,757.75, unless you shall believe, from the evidence, that said Moore did not intend to charge for said services when they were rendered." This...