Paulos v. Janetakos.

• Decision Date: 28 September 1937
• Docket Number: No. 4259,4259
• Citation: 41 N.M. 534,72 P.2d 1
• Parties: PAULOSv.JANETAKOS.
• Court: New Mexico Supreme Court

41 N.M. 534

72 P.2d 1

PAULOS

v.JANETAKOS.

No. 4259

Supreme Court of New Mexico.

Sept. 28, 1937.

Appeal from District Court, Bernalillo County; Fred E. Wilson, Judge.

Action by Louis Paulos against William B. Janetakos, individually and as executor of the estate of Mary Cornetto Janetakos, deceased, to enforce alleged executory agreement to devise property in exchange for personal services. From an order dismissing plaintiff's complaint, plaintiff appeals.

Reversed, with direction, and new trial awarded.

Defendant's moving to dismiss at close of plaintiff's case in equity is equivalent to demurrer to evidence, as at law, as against contention that defendant thereby submits his whole case on plaintiff's evidence.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellant.

John F. Simms, Robert Hoath La Follette, and Augustus T. Seymour, all of Albuquerque, for appellee.

SADLER, Justice.

The plaintiff (appellant) sued before the district court of Bernalillo county to enforce an alleged executory agreement to devise property in exchange for personal services. At the trial, upon plaintiff resting his case, the defendant, William B. Janetakos, individually and as executor of the estate of Mary Cornetto Janetakos, deceased, made a motion to dismiss, the equivalent of a demurrer to the evidence. After argument, the trial court sustained the motion and dismissed plaintiff's complaint. From the judgment of dismissal the plaintiff prosecutes this appeal.

The contract was pleaded in the complaint as follows: “That in said year 1921, the said Mary Cornetta Janetakos promised the plaintiff that if he would go to live in her household in the City of Albuquerque, New Mexico, and care for her in sickness and in health as a son until the time of her death, he should have and be entitled to all her property, both real and personal, as fully and to the same extent as if he were her sole lawful issue.”

Then follow allegations of acceptance of the contract by plaintiff and performance on his part from the year 1921 until March, 1933, when the contract allegedly was repudiated by the said Mary Cornetto Janetakos by her refusal to let plaintiff live longer in her household or further to perform the contract, although he alleged himself at all times ready, able, and willing to perform.

The making of the contract and performance thereunder were denied in defendant's answer and certain affirmative defenses pleaded, among them, the statute of frauds. Other affirmative defenses related chiefly to breaches of the supposed contract on plaintiff's part. It should be here stated that Mary Cornetto Janetakos was a widow at the time of entering into the alleged contract. However, in 1932 she married William B. Janetakos and died in 1934, leaving a last will and testament whereby she devised all her property to her surviving husband, the defendant herein. The case having been disposed of below as on demurrer to the evidence, it is of first importance to examine plaintiff's evidence.

The alleged contract was stated in evidence by plaintiff as follows:

“Q. Did you later start to work for her? A. While I was running the confectionery business I had a failure and I stayed with her until I was getting the bankruptcy papers here, and that is when I became more acquainted with Mrs. Cornetto at her place, and while I was laying over to take the bankruptcy I began to work for her as she agreed with me to do it.

“Q. Did she make you any kind of proposition? A. Yes.

“Q. What was that proposition? A. Well, she didn't have anybody at all, that was the first thing she told me and I rendered some service to her there for private quarters, cooking, she was always asking me to come into her place, and she told me if I stayed in her place she would give me everything she had at her death, and she told me that one million times, all the time I was there.

“Q. What were you to do for her? A. Well, I was supposed to take care of her in the way of cooking or anything that she needed to be done around the house.

“Q. And did she say how the property would go to you at the time of her death? A. Well, she just absolutely told me that I didn't need to worry about anything at all, that everything that she had she was going to leave it to me provided I stayed there and took care of her as much as I can.

“Q. Did you accept that proposition? A. Yes.”

Again, on cross-examination, plaintiff stated substance of the contract as follows:

“Q. How did she bring this question up of your being her son? A. This is the way she brought it up, this is exactly what she said, ‘Now, if you will stay here and take care of this place, take care of me, you don't need of anything, everything I have got I am going to leave it to you’ she said.

“Q. What did she say you were to do, what were going to be your duties? A. Well, it wasn't necessary for me to do anything except be there and take care of her business, I didn't have to do a whole lot, that is the way she expressed herself, that I was at her favors and do a little work for her around the house and all I could do for her, which I did.”

Several witnesses testified to statements by deceased that when she died all she had belonged to “Louis,” the plaintiff. One witness quoted her: “I took Louis to raise it and keep it just like my son, nothing ashamed, nothing dirty, nothing that I can be ashamed before nobody, but just like it was my son, and whenever I die everything I got go to Louis.”

Others testified: “When I die everything belong to him.” “Anything I have belongs to Louie.”

The testimony of Andy Pettini, a witness for plaintiff, as nearly furnishes corroboration, if it does, as anything coming from the lips of witnesses. He stated:

“A. Well, one time I finish a job in Flagstaff, I come back to Albuquerque, any time I finish a job I come back to Albuquerque, she had some picture there in the room and I call attention ‘Mary, who is that picture there’; she say ‘It is my boy’; ‘You don't have no boy’; she say ‘Yes, it is a boy that is room here, he do all my work, care for me, if I die everything belong to him’; that is what she tell me.

“Q. Whose picture was that? A. Louie's picture.

“Q. Louis Paulos? A. Yes.

“Q. Did she ever say anything else about her property on any other occasion? A. She just tell me if he stay over there and care for her and care for the property, that is all.

“Q. Then what ? A. ‘Then when I die, everything belong to him.”’

Pete Urioste, plaintiff's witness, testified:

“Q. Did you ever talk with Mrs. Cornetto about what she was going to do with her property? A. Many times.

“Q. What did she say? A. The only thing she would say when she would arrive that all she had was for Louie, she said.

“Q. How many times did she tell you that ? A. I can't tell you how many times because she told me many times.

“Q. What were the words she used? A. That all that she had was his.”

In July, 1926, plaintiff being absent in Texas, Mrs. Cornetto wrote him, “I sure hate for you to be away from me. Just think if anything happened to me nobody here in this big place you want it to go to the state or county you think this over.”

A month later, plaintiff being still absent, she wrote him: “*** and when I got your letter this morning I sure got sick again Louis you know I am alone and it is very hard for me some times you say you don't want to come back here. well louis I told you I would leave you all I had some day, and if you only want to make me sick and unhappy I thought if you would spend a few months their and come back in fall I think things will be better dont go any farther away it seems to me you change your mind every day louis when you left here you did not have to go. you went yourself, and it was not so bad 400.00”

The plaintiff testified that he accepted under the contract, went to live at the hotel owned and operated by Mrs. Cornetto, remaining there continuously from 1921 to 1926. He spent the years 1926 and 1927 in Texas, in and around Borger in said state, returning to Albuquerque and Mrs. Cornetto's home about January 1, 1928. As to the nature of the services rendered by him under the alleged contract, the plaintiff seems to have been the handy man about the place. He cooked, fixed plumbing, did errands; when Mrs. Cornetto was sick (and she was sick often) he called in the doctor and took care of her; met trains, painted, kalsomined, cleaned rooms, washed dishes, etc. So ran the testimony of the plaintiff.

During this time Mrs. Cornetto financed him in numerous small business enterprises. He had a fish market in 1922 in property owned by her. She put $200 into the fish market. This business continued about a year. Then he went into tailoring business in her building. She put up the money, about $400. Then he sold tailor-made clothes to individuals. Sold real estate in 1928, 1929, and 1931. As above stated, he was in Texas for two years, 1926 and 1927. Plaintiff testified the trip to Texas was made with her consent and that he visited Mrs. Cornetto every two months and was in continuous correspondence with her. He further testified that he remained with her constantly from date of his return from Texas (though one of his witnesses placed him in restaurant business in Los Lunas for six months during this period), except possibly a short trip to El Paso, until 1932 when Mrs. Cornetto gave plaintiff $20 and told him to get out; to go to Santa Fe or Gallup; that she didn't want him around any more. About this time she married the defendant, W. B. Janetakos, who claims under a will devising him all her property. She died in 1934. At the date of the alleged contract plaintiff was 23 years of age and Mrs. Cornetto, a childless widow, about 55 to 57 years of age.

[1] At the outset, the appellee suggests that the practice prevailing in this state of treating a motion for judgment or motion to dismiss as a demurrer to the evidence, whether the action be one at law or a suit in equity, is by...