Orr v. Jason

• Decision Date: 31 December 1877
• Citation: 1 Bradw. 439,1 Ill.App. 439
• Parties: MARY ORRv.MAGDALENA JASON, Adm'x, etc.
• Court: United States Appellate Court of Illinois

1 Ill.App. 439

1 Bradw. 439

MARY ORR

v.MAGDALENA JASON, Adm'x, etc.

Appellate Court of Illinois, Second District.

December Term, 1877.

OPINION TEXT STARTS HERE

Appeal from the Circuit Court of Marshall county; the Hon. John Burns, Judge, presiding.

Messrs. Barnes & Muir, for appellant; contending that the court erred in admitting testimony relative to the general character of the deceased as a person who paid his debts promptly, cited Phillips on Ev. 563; 1 Greenl'f Ev. § 52; Crose v. Rutledge, 81 Ill. 266; Phillips on Ev. 624.

That it was error to instruct that the plaintiff must prove his case by a clear preponderance of evidence: Crabtree v. Reed, 50 Ill. 206.

The law in civil cases requires only a preponderance of evidence: Miller v. Balthasser, 78 Ill. 302; Miller v. Miller, 16 Ill. 296; Freeman et al. v. Freeman, 65 Ill. 106.

Declarations and admissions of parties, when deliberately made, in view of all the facts to which they relate, are of the most satisfactory character as evidence, and it is error for the court to instruct that such evidence should be received with great caution and allowance: Frizzell v. Cole, 29 Ill. 465; Straubher et al. v. Mohler, 80 Ill. 21; Rafferty v. The People, 72 Il. 37.

Instructions should not be given upon any theory not supported by the evidence: Badger. v. Paper Mf'g Co. et al. 70 Ill. 302.

That the law under certain circumstances implies a contract to pay for services rendered by a child: Freeman et al. v. Freeman, 63 Ill. 106; Miller v. Miller, 16 Ill. 296; McRea v. McRea, 3 Brad. (N. Y.) 199.

The eighth instruction given for appellee was wrong, as it gives too much prominence to the circumstances favorable to appellee, and makes no mention of facts supporting appellant's view of the case: Hewitt v. Johnson, 72 Ill. 513; Homes v. Hale, 71 Ill. 552; Hatch et al. v. Marsh, 71 Ill. 370; C. B. & R. R. Co. v. Griffin, 68 Ill. 499.

Upon the question of when the Statute of Limitation begins to run in such cases: Rev. Stat. 1874 676; Freeman et al. v. Freeman, 65 Ill. 106; Thompson v. Reid, adm'r, 48 Ill. 118.

Messrs. Bangs, Shaw & Edwards, for appellee; argued that evidence that a party was prompt in payment of his debts, is admissible as tending to raise a presumption of payment of the claim in suit; and cited 3 Phillips on Ev. 505; Ross v. Darby, 4 Munf. 428.

That the plaintiff should make out a case by a clear preponderance of testimony: Candor's Appeal, 5 Watts v. Serg., 513; Mostelle's Appeal, 30 Pa. St. 473; Leidig v. Coover's Ex'rs, 2 Wright, 534; Davis v. Goodenow, 1 Vt. 715; Parker v. Johnson, 25 Ga. 576; Peak v. The People, 76 Ill. 289; Long v. Hitchcock, 9 C. &. P. 619; Lanz v. Frey et ux. 19 Penn. 369; 1 Starkie on Ev. 543.

It was proper for the jury to know that expectation of compensation by will would not take the place of an understanding between appellant and her father that she was working for hire: Willie v. Dunn, Wright, 134; Lee v. Lee, 6 Gil. & Johns. 316.

LELAND, P. J.

This was an action by Mary Orr, the wife of William T. Orr, against her mother, Magdalena Jason, as administratrix of the estate of her father, John Jason.

The suit was brought by appellant to recover $3,000, claimed to have been an amount agreed upon and fixed as compensation for some twelve and a half years' labor by appellant for her father in his lifetime, after she became of age. The defense was that she continued with her father after she became of age as before, and that the relation of debtor and creditor never existed. There was also a plea that the cause of action did not accrue within five years next preceding the commencement of the suit. (This should have been five years next preceding the death, etc. See Sec. 19, p. 676, Rev. Stat., 1874.) Replications: first, that they did accrue, etc., and second, a promise by deceased within the five years, etc. Trial and verdict for the defendant.

Jason, the deceased, was a Dane, and there was evidence tending to show that the appellant during the twelve and a half years performed the ordinary farm labor usually done by men. It was contended by appellant, with evidence tending to show it, that it was constant, and by appellee, supported by evidence to that effect, that it was occasional only, and that it was not unusual for females similarly situated, of Danish descent, to do such work occasionally.

There was evidence tending to show that appellant's father during his last illness, said to her in the presence of witnesses whom he desired to pay particular attention, “Mary, I want you to have $3,000 to pay you for your work out of my property, and then come in equal shares with the rest.”

There was also evidence that an attempt had been made to prove this up as a nuncupative will, and that the question whether it was a will or not was then pending in the Circuit Court on appeal from a determination of the County Court that it was not a will. There was evidence to the effect that the father was very low, and near his end when the statement was said to have been made. It was also contended by appellant, and there was evidence tending to show it, that her father a day or two after this gave her $750 for her trouble nursing him during his sickness, and that it was not to be part payment of the $3,000, but a gift or gratutity in addition thereto.

This is a sufficient statement of the controversy for the purposes of this opinion. We do not propose to say anything as to the weight of the evidence, as the case must be passed upon by another jury, but we will confine ourselves to the rulings of the Court below, which we deem erroneous.

The first error assigned to which our attention is directed, is that witnesses for appellee were allowed to state that the deceased was prompt in the payment of debts. We see no objection to this. It is always allowable to show the necessity of the creditor and the ability of the debtor as circumstances tending to show payment, and there was evidence in the case tending to show that the father had paid Mary for her labor. We see no reason why promptness is not as proper to be shown as ability. The authorities cited by appellee we think in point.

The only objection to the introduction of the supposed will is that the jury might fear that if the plaintiff got a verdict she might also claim the same amount again under the will; that it was irrelevant, etc. We hardly think that the jury would consider that the payment of the amount as a debt would not amount to a payment of the legacy. We are disposed to think that the introduction of the will and the proceedings to probate it, if such proceedings were with the consent of appellant, and we think there is evidence tending to show that she did consent thereto, was proper in determining whether the $3,000 were in the nature of a gratuity or bequest of that amount as her share out of the estate, instead of in addition to it. The mother testifies that the deceased said that he intended that Mary should have $3,000, if she (the mother) was willing, in either money or property, but that he did not say that she should have that and then come in equal shares with the rest. Considering the amount of the estate of the deceased, and that there were other children, this would seem full as just as that appellant should have $3,000, and not treat the $750 as a payment to that extent, but have it added to it, and then divide equally with the rest. As a circumstance shedding light upon the intention of appellant and of the deceased, as to whether there was a liquidation at $3,000 and a promise to pay it, we see no objection to this evidence. If there was actually a promise to pay $3,000 as a sum agreed upon and liquidated between the parties, it would not make it any the less a promise, that the deceased made a will, that the debt so promised should be paid. If the paper was not a will, but a promise merely, then appellant might have asked the Court to instruct to that effect for her.

We think the general question to appellant, “Just state what the arrangement between you and your father was?” was too broad, as an answer to it, if permitted, would have allowed the appellant to have testified fully in relation to conversations or transactions about which the other interested witnesses had not spoken.

It was the duty of counsel to have called the attention of the witness to the particular transaction or conversation mentioned by such other interested witnesses.

We think that she might have been asked whether it was true as stated by the witness that she was to have a dollar a day when she worked in the field, and nothing when she worked in the house? Whether it was true or not, that her father treated her the same after as before she became of age? Whether it was true or not that her father always paid right up? Whether it was true or not that nothing was said as to how much she was to get until John became of age, & c., &c.

We are aware it is rather difficult sometimes to say what a transaction mentioned in the statute is. In the case of Donlevy v. Montgomery, 66 Ill. 227, it was thought by the Court below that when it was proved that Donlevy admitted a fact, that he might say that he did not make any such admission, and that he knew he did not, because the alleged admitted fact did not exist, but on the contrary it was otherwise, stating what the fact was. The ruling was considered improper, and that he should only have been permitted to deny that the conversation took place and stop there without stating the real facts, as that made him a witness as to the whole controversy, and not as to the conversation. It might plausibly be said that the real “transaction” testified about in this case, was whether the father did liquidate the amount for the work, and promise to pay the $3,000, and that the interested witnesses were testifying to facts and circumstances tending to show that this could not be so. We think each one of the facts and circumstances tending to prove the main thing...