Nesbitt v. Miller

Decision Date02 February 1934
Docket NumberNo. 14487.,14487.
Citation188 N.E. 702,98 Ind.App. 195
PartiesNESBITT v. MILLER.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Daviess Circuit Court; Milton F. Hastings, Judge.

Action by Emily I. Miller, executrix of the last will and testament of William A. Miller, deceased, against Benjamin F. Nesbitt, who filed a cross-complaint. Judgment for plaintiff, and defendant appeals.

Reversed, with instructions.

William M. Alsop, of Vincennes, Padgett & Rogers, of Washington, Ind., and Thomas B. Coulter, of Vincennes, for appellant.

Allen, Hastings & Allen, of Washington, Ind., and Ramsey & Grayson, of Vincennes, for appellee.

BRIDWELL, Presiding Judge.

Appellee instituted this action against appellant to recover a money judgment for services rendered to appellant by one William A. Miller, deceased, pursuant to a certain contract entered into by said deceased and appellant on January 11, 1917. Such further proceedings were had in the court below that the cause was submitted for trial to a jury upon issues closed by an answer in general denial to the fifth and sixth paragraphs of an amended complaint, and an answer in general denial by appellee to a cross-complaint filed by appellant. Prior to the closing of the issues, and in due course, appellant filed his demurrer to each of said paragraphs of complaint which was overruled, and appellant excepted to the ruling as to each paragraph. Appellant thereafter filed an answer in three paragraphs to each of said paragraphs of complaint, the first of said paragraphs of answer being a general denial. Appellee filed motion to strike out the second and third paragraphs of said answer, which motion was sustained, and appellant excepted. The jury returned its verdict in favor of appellee upon her fifth paragraph of amended complaint, in the sum of $5,000. A motion for a new trial was filed and overruled, to which ruling appellant excepted. Judgment was rendered on the verdict, and this appeal perfected. Appellant assigns the following alleged errors upon which he relies for reversal, to wit: (1) The overruling of his demurrer to the fifth paragraph of amended complaint. (2) The overruling of his demurrer to the sixth paragraph of amended complaint. (3) The sustaining of appellee's motion to strike out the second paragraph of appellant's answer to the fifth and sixth paragraphs of amended complaint. (4) The sustaining of appellee's motion to strike out the third paragraph of appellant's answer to the fifth and sixth paragraphs of amended complaint. (5) The overruling of appellant's motion for a new trial.

[1][2] The fifth paragraph of amended complaint, omitting the caption and signature of counsel, is as follows:

“The plaintiff in the above-entitled cause, for a further and fifth paragraph of amended complaint herein, complains of the above-named defendant and says:

“That plaintiff is now the duly qualified and acting executrix of the last will and testament of one William A. Miller, late of Knox County, Indiana, now deceased.

“That on the 11th day of January, 1917, the said William A. Miller, then in full life, and the defendant entered into a written contract, which written contract is as follows:

“‘Jan. 11, 1917.

“‘Wm. A. Miller, Vincennes, Indiana.

“‘Dear Sir: Regarding the peach orchard which I contemplate putting out on my farm on the Monroe City Gravel Road, I hereby agree to give you one-half of the one crop, you select the crop from which you will participate.

“‘In consideration for the above, you are to look after and superintend the planting, the replanting, fertilizing, cultivating, spraying, trimming, digging out the bowers, securing of labor and marketing until such time as the crop you will participate in has all been sold.

“‘It is understood and agreed that I am to pay all the expense, except for your time and attention, no part which, either for time spent by you or transportation for you, is to be borne by me.

“‘Very truly, B. F. Nesbitt.

‘Approved, W. A. Miller.’

“That from the 11th day of January, 1917, until the 12th day of February, 1921, the said William A. Miller duly, fully and faithfully performed all of his part of said contract to be by him performed and all of his duties thereunder. That the said William A. Miller died on the 12th day of February, 1921, at which time it became impossible for him thereafter to perform his part of said contract by reason of his death.

“That the said services rendered by said William A. Miller to the defendant under said written contract were received and accepted by the defendant and were of the value of five thousand dollars to the defendant.

“That the said William A. Miller, nor this plaintiff, have not been paid or in any way compensated for the services so rendered by said William A. Miller to the defendant as aforesaid.

“That there has been long and unreasonable delay in payment for said services, for which plaintiff is entitled to recover interest thereon at the rate of 6 per cent per annum.

“Wherefore, plaintiff demands judgment for seven thousand dollars and for all other proper relief in the premises.”

The cause for demurrer alleged therein is that said paragraph of complaint does not state facts sufficient to constitute a cause of action.

Appellant contends that by this paragraph of complaint appellee seeks to recover upon the contract made between the decedent and the appellant; that said contract is one of a strictly personal nature involving particular skill and ability; that it is an entire and indivisible contract, and no right of recovery exists when there is only a partial performance, even though death, or some other cause beyond the control of the promisor, and not due to his fault, prevents complete performance on his part. Authorities are cited which support the contention made, and appellant asserts that, since this paragraph alleges that the contract was not fully performed, no cause of action is stated.

The paragraph of complaint under consideration, however, is not a suit upon the contract made between appellant and the deceased. By this paragraph appellee seeks to recover the value to appellant, of the services rendered by the said William A. Miller because of the contract, which services she alleges were received and accepted by appellant and were of the value of $5,000 to him.

We agree that the contract involved here required of the deceased his personal supervision in bringing about the result contemplated by the parties when the contract was made. It is a special entire contract, and it is apparent that it was the intention of the parties thereto that William A. Miller was to receive nothing for himself until such time as a peach orchard, bearing fruit, resulted from the joint enterprise upon which he and appellant entered for their mutual gain. However, as was said in the case of Parker v. Macomber, 17 R. I. 674, 24 A. 464, 465, 16 L. R. A. 858, hereinafter cited: “It is not just that [one party] should benefit by the labor of another, and make no return, when the event which ends the service happens without fault of either party, and is not expressly or impliedly insured against in the agreement which induced the labor.” No action will lie on the contract, because it has not been completely performed, but the party who has benefited by the labor of another is responsible on an implied promise, arising from the circumstances, to the extent of the net value received by him, not exceeding, in any event, the compensation fixed by the contract. The court did not err in overruling the demurrer to the fifth paragraph of amended complaint. Coe v. Smith (1853) 4 Ind. 79, 58 Am. Dec. 618;Williams v....

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