Moore v. Sykes' Estate

• Decision Date: 02 October 1933
• Docket Number: 30692
• Citation: 149 So. 789,167 Miss. 212
• Parties: MOORE v. SYKES' ESTATE
• Court: Mississippi Supreme Court

149 So. 789

167 Miss. 212

MOORE v. SYKES' ESTATE

No. 30692

Supreme Court of Mississippi

October 2, 1933

Division B

Suggestion Of Error Overruled October 30, 1933.

APPEAL from the chancery court of Monroe county HON. JAS. A. FINLEY Chancellor.

Petition by Margaret Moore against the estate of Homer Sykes deceased. From a decree of dismissal, petitioner appeals. Reversed and remanded.

Reversed and remanded.

Paine & Paine, of Aberdeen, for appellant.

The legal presumption is that where one goes to the home of another not related to him, there is an implied contract to pay board, and certainly that presumption would indulge in this case especially as the place where the man went, was a boarding house and the woman, who was engaged in that work, worked for a living.

Tarver v. Lindsey, 161 Miss. 379.

We do not deem it necessary to argue the question as to whether the house and lot involved in this case is a homestead and as such absolved from appellant's claim, but at the risk of being prolix and pedantic will refer the court to the following law to the effect that under the facts in the case the property was liable for the debts of Homer Sykes.

Sec. 1765, Mississippi. Code of 1930; 45 Miss. 178; Nelson v. State, 57 Miss. 286, 288; Mounger v. Gandy, 110 Miss. 133, 138; Tanner v. Tanner, 111. Miss. 466; Ney v. Winborn, 120 Miss. 11; Chrismand, Sheriff, v. Mauldin, 130 Miss. 270; Buckley v. Porter, 160 Miss. 99, 102; Pearson v. Miller, 71 Miss. 381.

McFarland & Holmes, of Aberdeen, for appellee.

We see no occasion to go into detail with reference to this case, as it is a simple matter of whether or not Homer Sykes paid his board bill, and the chancellor, after hearing all of the testimony, decided that his board had been paid, and we see no reason for the supreme court to disturb this holding.

The property involved in this case is a homestead, and as such descended to Katie Sykes, the wife of Homer Sykes, free from all debts that might have been due by Homer Sykes, so in our opinion, this case should be decided for appellee, both on the facts and the legal proposition involved with reference to the homestead.

Sykes v. Sykes, 162 Miss. 487, 139 So. 853.

Argued orally by Geo. C. Paine, for appellant.

OPINION

Griffith, J.

Appellant owned and operated a negro boarding house in the city of Aberdeen. Homer Sykes, according to all testimony, boarded at said house. He was not related to appellant either by affinity or consanguinity; he had no children. And he had no near relatives living in that community. About the year 1922 his wife, who for two years theretofore had lived with him in a house owned by him in said city, had left him and had gone North, where she has since that time resided. Soon after her departure, Sykes went to appellant's boarding house, and there remained and boarded until his death in 1930. Appellant petitioned the chancery court for a decree allowing her five hundred forty dollars for three years' board claimed to be due her by Sykes at fifteen dollars per month, and for a sale of the house and lot owned by Sykes at his death. Katie Sykes, the absent widow of the decedent, resisted the petition, and on the hearing the chancellor denied the relief and dismissed the petition.

It appears from the chancellor's opinion that he correctly adhered to the rule that, where a person not related or a member of the family comes to another person to board, there is the presumption of an agreement or understanding that board will be paid, if the person so boarded is able to pay. Tarver v. Lindsey, 161 Miss. 379, 384, 137 So. 93. The chancellor referred, however, to the further presumption mentioned in that case, that, if the person boarded be shown to have been from time to time able to pay, then without countervailing proof the presumption of payment made will stand; and the chancellor held that the countervailing proof in this case was not sufficient to overturn that presumption. Appellant in her brief and argument points out and strongly presents the view that there is no dispute of the countervailing proof offered by the petitioner here, and that this proof was of the same nature and strength as that which in the Tarver v. Lindsey case, and also in Loviza v. Lynch, 115 Miss. 694, 76 So. 629, was held to be sufficient to overturn the stated presumption; and in that contention we think appellant has much the best of the argument.

But we are not satisfied to reverse and render decree here as was done in the case first cited, and certainly we cannot be content to affirm--this because of the unsatisfactory condition of the present record, its failure in the full development of the facts, its lack of definiteness in many of its important and perhaps controlling features. We are put in inevitable doubt as to what inferences the chancellor may have been able to legitimately draw from the imperfectly developed evidence, and the want of evidence, which could have been easily supplied by way of direct testimony, rather than leave salient features suspended in mid-air to be reached by inference, or supplied by conjecture.

We may mention some of these important omitted features without which we cannot safely proceed, nor could the chancellor. But we cannot refer to all of them within the proper limits of a written opinion. First, we may notice that three or four witnesses were asked what in their opinion was a reasonable sum to be allowed for the board of this man, and the answers varied from eight to twenty dollars per month. If the chancellor had been able to find that eight dollars was a proper amount, we might feel justified in affirming this decree when the several other facts were applied. If, however, he had found twenty dollars to be a correct amount, then the opposite result would follow. If fifteen dollars per month were found to be the proper amount, the case would be closer by far. Our point here is this: It is common knowledge that, ordinarily, boarding houses have regular and established rates, and the reasonable presumption is that a boarder at a boarding house which has for some time been in existence has agreed to pay the regular and established rate, but there is not in this record a word of what would be the best proof on this issue; namely, what the rates were at this house.

In the next place we may mention that it was shown by two or three witnesses that appellant, in addition to her boarding house, kept some kind of a store, and it was said by them that Sykes assisted in this store by sometimes waiting on customers, particularly in handing out soft drinks, and also that he kept the books for appellant for this store. It is argued from this that thereby Sykes paid his board or a part of the amount thereof. But there is nothing in this record as to the size of this store, whether it was a mere road or street side soft drink establishment containing only a handful of articles, and the books of which, if any, were of no consequence, or whether it was an establishment of considerable size, necessitating a set of books of importance. And how could the chancellor with no more information than was given him on that subject intelligently weigh that issue, and how...