Officer v. Cummings

• Decision Date: 27 November 1928
• Citation: 127 Or. 320,272 P. 273
• Parties: OFFICER v. CUMMINGS ET AL.
• Court: Oregon Supreme Court

272 P. 273

127 Or. 320

OFFICER v. CUMMINGS ET AL.

Supreme Court of Oregon

November 27, 1928

Department No. 2.

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Action by Della Officer against A. P. Snyder, for whom, on his death, Jessie Snyder Cummings and another were substituted as defendants. Judgment for plaintiff, and defendants appeal. Affirmed.

Errett Hicks, of Canyon City (Geo. H. Cattanach, of Canyon City, on the brief), for appellants.

John J Beckman, of Portland (Frank A. McMenamin, of Portland, on the brief), for respondent.

BELT J.

Plaintiff commenced an action against her father, A. P. Snyder, now deceased, to recover upon an express contract the value of her services rendered to him as "housekeeper, nurse and caretaker in his home," between and including April 1, 1914, and February 28, 1922. Upon the death of her father in June, 1927, an order of substitution was made, making the executors of his estate defendants. The reasonable value of such services is alleged to be $65 per month. It is also alleged that $600 is a reasonable sum as an attorney fee for the prosecution of the action. Defendants answered, alleging payment and that the action is barred by the statute of limitations. A verdict was rendered in favor of plaintiff for $1,480 and for an attorney fee as demanded in the complaint. Defendants appeal.

Exception is taken to the following intruction:

"I further instruct you as to the statute of limitations as applicable to the first cause of action, that if you find there was an entire contract for the performance by plaintiff of continuous services, and the term thereof and time of payment were not agreed upon, and if you further find that the plaintiff did perform such services continuously, then I instruct you that the statute of limitations as to such services would not begin to run until the completion of the employment. The claim for wages in the first cause of action alleged in the complaint would be barred in six years from the completion of such services, if you find that they were performed as aileged."

The above instruction is in keeping with the rule announced by this court in Branch v. Lambert, 103 Or. 423, 205 P 995, wherein it was said:

"Where a claim is made for labor and services, and the matters specified therein are the outgrowth of an entire contract for continuous labor and services, the demand will be regarded as an entire contract, and the right to bring an action thereon accrues at the completion of the services or at the time the claimant ceased to render the services upon which the claim is based, unless a later date for payment has been fixed by the parties to the contract"--citing 17 R C. L. 797; Eliot v. Lawton, 7 Allen (Mass.) 274, 83 Am. Dec. 683.

We are unable to agree with the contention of the defendants that there is no evidence upon which to base the instruction. Plaintiff, in substance, testified that she was employed by her father as alleged in the complaint, and that she worked continuously until discharged by him on February 28, 1922; that there was no agreement as to the rate of compensation nor the term of the employment; and that no demand for payment was made until she was discharged. In response to the question, "Why did you did not ask for your wages?" the plaintiff testified, "I told him in our agreement, when we first made our agreement, that I had money of my own * * * and when I did need it I would ask him for it." We cannot assume, with counsel for defendants, that the contract of employment was from month to month. Nor was it an ordinary farm labor contract to which evidence of custom as to time of payment of wages might apply.

Where continuous services have been rendered for a long period of time, under a contract of employment, no rate of compensation nor term of employment having been specified, the statute of limitations does not begin to run until the completion of the services or the termination of the contract. While the authorities are conflicting ( Matter of Application of Gardner, 103 N.Y. 533, 9 N.E. 306, 57 Am. Rep. 768; Miller v. Lash, 85 N.C. 51, 39 Am. Rep. 678), the rule stated is well established in many jurisdictions: Harmon v. Smitch, 86 Ind.App. 527, 157 N.E. 284, 158 N.E. 627; McCarthy v. Paris (Idaho) 267 P. 232; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Carter v. Carter, 36 Mich. 207; Gulbranson v. Thompson, 63 Utah, 115, 222 P. 590; Sibley v. Stetson & Post Lumber Co., 110 Wash. 204, 188 P. 389; Bowie v. Trowbridge, 175 Iowa, 118, 156 N.W. 977, L. R. A. 1916D, 1260, Ann. Cas. 1917D, 1067; 3 Williston on Contracts, § 2029; 37 C.J. 824.

We see no merit in the contention that the court should have discharged the jury and declared a mistrial because of alleged misconduct of attorney for the plaintiff in that, on cross-examination of Mrs. Damon, a sister of the plaintiff she was asked: "You are one of the beneficiaries under the will of A. P. Snyder, are you not?" and the further question, "And Mrs. Officer only received $5.00 under the will?" The first question, in our opinion, was proper, as the jury was entitled to know what interest, if any, the witness had in the outcome of the case. It is to be borne in mind that this was an action against the estate in which the witness was interested, as she was a beneficiary under the will. The second question was not answered. We do not think it was purposely injected into the case to prejudice the jury. Furthermore, in view of the defense of...