Mug v. Ostendorf
| Decision Date | 13 December 1911 |
| Docket Number | No. 7,340.,7,340. |
| Parties | MUG v. OSTENDORF. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Tippecanoe County; Henry H. Vinton, Judge.
Action by Mary J. Mug against John Ostendorf. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
A. Orth Behm and Charles E. Thompson, for appellant. Wilson & Quinn, for appellee.
Appellant brought suit against appellee to recover for services as his housekeeper and for money expended in furnishing him with food and provisions. Issues being 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 upon for reversal is that the court erred in its conclusions of law.
The court found, in substance, that on June 13, 1906, appellee, a widower, 65 years of age, was living alone in his home in the city of Lafayette, Ind., and was desirous of obtaining the services of appellant as housekeeper and to care for him during the remainder of his life; that on the above date he made and entered into the following written contract with appellant: (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, in which was contained the following: The court further found that appellant abandoned 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 his home, engaged in the performance of her duties under said contract, said Ostendorf 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 the written contract above set out; 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 the same so long as allowed and permitted to do so by him; that she was the niece of appellee, an unmarried woman, 46 years of age, strong physically, of good health, a vigorous constitution, and able to perform the work agreed to be done by her under the contract; that in carrying out her contract and during the time she lived in the home of appellee appellant paid out for groceries and other food supplies for the table of appellee the sum of $30 per month; that said money so expended was the money of appellant; that a just and reasonable value of the services of appellant as a domestic in doing the household work of appellee during the period of time aforesaid was $5 per week; that she was paid nothing by appellee for her services as domestic and no part of the money expended by her for food and provisions was repaid to her by him; that appellee paid nothing in keeping up the house and furnishing the table from June 13, 1906, to May 6, 1908, excepting the furnishing of potatoes and garden truck as agreed in the contract; that, before bringing this suit, appellant made demand upon appellee for the value of her services aforesaid and for the money which she had expended in his behalf; that said demand was refused by him, whereuponshe instituted this suit; that at the time of the execution of 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 per 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 by (1) the destruction of 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.
[1] 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 had destroyed his will. The failure to find that the will was destroyed or the provision bequeathing the life estate to appellant 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.
[2] It is beyond dispute that under the implied obligations of the aforesaid agreement 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 on Contracts, §§ 1487, 1488; Cwynne v. Ramsey, 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 A. & E. Enc. Law, p. 150; 3 Page on Contracts, §§ 1483-1485; Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 480.
[3][4] 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 money expended, by appellant in pursuance of the contract. If he had stood by the contract, such liability, both for services rendered and money expended for provisions, would have been fully...
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