Neal's Executors v. Gilmore
| Decision Date | 06 January 1876 |
| Citation | 79 Pa. 421 |
| Parties | Neal's Executors <I>versus</I> Gilmore. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1875, No. 143.
O. L. Jackson and R. B. McComb, for plaintiffs in error, cited Graham v. Graham, 10 Casey 472.
______ Dana, for defendants in error.—The measure of damages is the value of the services: Hertzog v. Hertzog, 10 Casey 418; M'Nair v. Compton, 11 Id. 23; Bender v. Bender, 1 Wright 419.
This was an action instituted in the court below by the plaintiffs to recover upon an alleged contract by Adam and Martha Neal in their lifetime, that if the plaintiffs would stay with them until they were respectively twenty-one years of age, Adam and Martha Neal would "at their death give them all they had." Assuming, on the authority of Graham v. Graham's Ex'rs, 10 Casey 475, that the measure of damages, in an action for the breach of such a contract, is the value of the services rendered, it was submitted to the jury to find a verdict for the value of such services, which they accordingly did. We will consider the assignments of error in their order.
The first assignment is that the court erred in instructing the jury "that if Elias Gilmore (one of the plaintiffs) was absent learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time be arrived at the age of twenty-one years." There was no error in this instruction properly understood. The learned judge certainly did not mean to say that the plaintiffs were entitled to recover for the time during which either of them was absent by permission, but that such absence should not work a forfeiture of any part of their wages while they were rendering service. He instructed the jury that they were entitled to recover the whole value of their actual services — not for time while they were not rendering service.
The second error assigned is that the court charged the jury "that the twenty-five acres of the farm given by Martha Neal to Richard Gilmore (in her lifetime) should not be taken into account or deducted from the value of the services rendered." It is undoubtedly true that in an ordinary contract of hiring, a present made by the master to his servant is not to be allowed or deducted from his wages. But here the plaintiffs set up and relied upon a special promise to give them all that the Neals had at their death. It would be strange if, in a claim for the value of the services under such a contract, the defendants could not show the value of what the decedents had actually given in their lifetime in part performance of it. It is sticking in the bark to say that the contract was specific to give them what they had at their death. If during their lives they gave as much as the services were worth, it would be an anomalous result to allow them still to recover the full value of their services besides. The presumption, in the absence of evidence, was that the gift was intended as pro tanto a payment on account — as it certainly would have been if the law had permitted a recovery according to the terms of the contract of the whole estate of Adam and Martha Neal at their death. We think there was error in this instruction.
The third assignment is based upon the refusal of the court to affirm the first point of the defendants below. The point assumed that the plaintiffs had declared upon a contract with Martha Neal alone and not upon a joint contract by her and Adam Neal. But, although the first count of the amended declaration is as assumed in the point, the second count is on a joint contract, and the action was against the executors of the survivor of the two joint contractors. We think therefore that it would have been error to have affirmed this point.
The last assignment is that the court erred in admitting the deposition of Oliver C. House. The first objection was that it related to a joint contract made by Adam Neal and Martha Neal with plaintiffs, the suit being against Martha Neal's executors alone, and the plaintiffs having so declared. But, as we have seen in examining the third assignment, this objection is founded on an error of fact. The second count of the amended declaration is upon a joint contract, and the action is properly brought against the executors of the survivor. Another objection to the deposition was, that it was incompetent and irrelevant. But the witness was surely competent, and the evidence he gave competent and relevant. If for no other reason, it was pertinent to the issue, because it showed the relation in which the parties stood to each...
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