Mug v. Ostendorf

• Decision Date: 13 December 1911
• Docket Number: 7,340
• Citation: 96 N.E. 780,49 Ind.App. 71
• Parties: MUG v. OSTENDORF
• Court: Indiana Appellate Court

96 N.E. 780

49 Ind.App. 71

MUG v. OSTENDORF

No. 7,340

Court of Appeals of Indiana

December 13, 1911

From Superior Court of Tippecanoe County; H. H. Vinton, Judge.

Action by Mary J. Mug against John Ostendorf. From a judgment for defendant, plaintiff appeals.

Reversed.

A. O Behm and C. E. Thompson, for appellant.

Wilson & Quinn, for appellee.

OPINION

FELT, C. J.

Appellant brought this action against appellee to recover for services as his housekeeper and for money expended in furnishing him with food and provisions. Issues were joined the cause was submitted to the court without the intervention of a jury, and upon request the court made a special finding of facts and stated its conclusions of law thereon, which were in favor of appellee. From the judgment rendered thereon this appeal was taken, and the only error relied on for reversal is that the court erred in its conclusions of law.

The court found that on June 13, 1906, appellee, a widower, sixty-five years old was living alone in his home in the city of LaFayette, Indiana, and was desirous of obtaining the services of appellant, as housekeeper and to care for him during the remainder of his life; that on said date, he entered into the following written contract with appellant:

"This agreement, made and entered into this 13th day of June, 1906, by and between John Ostendorf and Mary J. Mug, both of the city of LaFayette, Indiana, witnesseth: That whereas, said Ostendorf, who is a widower and getting along in years, and has no housekeeper, is anxious to get said Mary J. Mug, who is his niece, to act as his housekeeper, and said Mary J. Mug has consented to act as such housekeeper, now it is agreed between them as follows: Said Mary J. Mug and her brother, John T. Mug, are to move into the house owned by said John Ostendorf, and which is situate on the following described real estate in Tippecanoe county, Indiana, and is described as follows, to wit: [Then follows description of the property, consisting of four lots in LaFayette.] Said Mary J. Mug agrees to keep house for said Ostendorf and cook for him, and to take care of him if he should become sick and unable to care for himself, and for such housekeeping, cooking and care she is to make no charge. In consideration of such housekeeping, cooking and care bestowed upon him by his said niece, said Ostendorf agrees that said Mary J. Mug shall occupy said real estate hereinbefore described and the house thereon situate for and during the term of her natural life, free from all rent, taxes or other charges while said Ostendorf lives, and further agrees that he will, contemporaneously with this agreement, make his will, and, in said will, will devise said real estate to said Mary J. Mug for and during the term of her natural life. Said Mary J. Mug, during the lifetime of said Ostendorf, shall have such fruit and vegetables as are grown on said real estate as she may desire to use in and about said house, and for putting up for use of the family. In case said Mary J. Mug should move away from said house and cease to keep house for said Ostendorf, then this agreement shall be null and void." (Signatures and acknowledgment omitted.)

The court also found that on said date the appellee, in compliance with the aforesaid contract, made and executed his last will and testament, which contained the following:

"Item 4. I give and devise to my niece, Mary J. Mug, the described real estate situate in Tippecanoe county, State of Indiana, to wit, [Here follows description of property, being the same description as contained in the contract before set out.] to be held, used and enjoyed by her for and during the term of her natural life."

The court further found that appellant left her own home and went to the home of appellee, where she entered upon the discharge of her duties under said written contract; that she kept and performed all and singular the conditions, stipulations and provisions of said written contract on her part to be performed from the date of said contract continuously up to May 6, 1908; that nothing in her conduct or the manner in which she performed her work was objectionable to appellee; that during the time appellant remained in said Ostendorf's home, engaged in the performance of her duties under said contract, he treated her in a cruel and inhuman manner, in this: that he frequently cursed and swore at her without any cause or provocation on her part; that he frequently became intoxicated, and while using intoxicating liquors was cross, vulgar and indecent in and about the home; that appellant did not know that he was addicted to the use of intoxicating spirits prior to the execution of said written contract; that on April 25, 1908, appellee, without cause or provocation on the part of appellant, called her a liar, and ordered her to leave his home; that in compliance with his demands and on account of his cruel and inhuman treatment of her, she left his home on May 6, 1908; that she was ready and willing at all times to keep and perform her part of said written contract with appellee, and did keep and perform it so long as allowed and permitted to do so by him; that she was the niece of appellee; that she was an unmarried woman, forty-six years of age, strong physically, had good health, and was able to perform the work that she agreed to do under the contract; that in carrying out her contract and during the time she lived in appellee's home, appellant paid out for groceries and other food supplies for appellee's table the sum of $ 30 a month; that said money so expended belonged to appellant; that the reasonable value of appellant's services as a domestic in appellee's household during the period of time aforesaid was $ 5 a week; that she was paid nothing by appellee for her services as a domestic, neither did he repay her the money she expended for food and provisions; that appellee paid nothing toward keeping up the house and furnishing the table from June 13, 1906, to May 6, 1908, except to furnish the potatoes and other vegetables, as agreed in the contract; that before bringing this action appellant made demand upon appellee for the value of her services aforesaid, and for the money she had expended in his behalf; that said demand was refused, whereupon she instituted this action; that at the time of executing said written contract, and ever since that time, appellee was the owner in fee simple of the real estate described in said contract; that a fair rental value of said real estate is $ 20 a month.

The first paragraph of the complaint alleges generally all the facts relating to the execution of the contract, the making of the will, the rendition of the services, the cruel treatment of appellant by appellee, and the fact that he had ordered her to leave his home; that he had violated his contract (1) by destroying his last will and testament, (2) by his cruel treatment of appellant, and (3) by forcing her to leave his home.

The second paragraph was upon a common count for labor performed and provisions furnished at the special instance and request of appellee.

The court's finding is full and conclusive upon the subject of the cruel treatment of appellant, and upon the facts showing that appellee compelled her to leave his home, in violation of his contract, but it is silent upon the proposition that he destroyed his will. The failure to find that the will was destroyed, or that the provision bequeathing the life estate to appellant was changed or annulled, is the equivalent of a finding against appellant upon that issue, as she had the burden of proving such facts.

The finding makes it clear and emphatic that in the conduct of the parties appellee was wholly at fault; that appellant was free from fault in her demeanor, and there was no dereliction on her part in the discharge of the duties imposed upon her; that in leaving appellee's home she was fully justified, and did not by so doing violate her contract.

It is beyond dispute that, under the implied obligations of the agreement between appellant and appellee, each was entitled to receive from the other reasonably kind and respectable treatment.

By the express terms of the contract appellant had the right to live in the property described therein, rent free, during the lifetime of appellee, so that it is beyond dispute that he violated his contract in cruelly treating appellant, and by compelling her to leave his home. This is sufficient to give her a right of action, notwithstanding the failure to show that the will had been destroyed, or its provisions, favorable to her, changed or annulled.

The contract is an entirety, and its obligations mutual and reciprocal. Appellant was entitled to the continuing benefit of living in the house, rent free, and of being accorded reasonably kind and courteous treatment from the appellee, in addition to a life estate in the property. 3 Page, Contracts §§ 1487, 1488; Gwynne v. Ramsey (1884), 92 Ind. 414, 421.

To show a breach of the contract giving a right of action in her favor, appellant is not required to show that appellee violated all the obligations assumed by him under the contract, but it is sufficient to show that he wrongfully deprived her of some of the substantial and material benefits secured to her by its provisions. 7 Am. and Eng. Ency. Law (2d ed.) 150; 3 Page, Contracts §§ 1483-1485; Dugan v. Anderson (1872), 36 Md. 567, 11 Am. Rep. 480.

When appellee violated his contract in the manner aforesaid, he thereby gave appellant the right to treat it as abrogated. The liability charged against him in the complaint arises out of the services rendered and the money expended by appellant in pursuance of the contract. If appellee had stood by the contract, such...