Puterbaugh v. Puterbaugh

• Decision Date: 31 March 1893
• Docket Number: 689
• Citation: 33 N.E. 808,7 Ind.App. 280
• Parties: PUTERBAUGH, ADMINISTRATRIX, v. PUTERBAUGH
• Court: Indiana Appellate Court

33 N.E. 808

7 Ind.App. 280

PUTERBAUGH, ADMINISTRATRIX, v. PUTERBAUGH

No. 689

Court of Appeals of Indiana

March 31, 1893

Reported at: 7 Ind.App. 280 at 302.

From the Cass Circuit Court.

Judgment affirmed and reversed.

D. C Justice, B. K. Elliott and W. F. Elliott, for appellant.

M Winfield, D. D. Dykeman, W. T. Wilson, J. C. Nelson and G. C. Taber, for appellee.

DAVIS, J. Judge Ross did not participate in the decision.

OPINION

DAVIS, J.

This was an action by appellee based on a claim in the form of a regular complaint in two paragraphs, filed against the estate of Henry Puterbaugh, July 12th, 1890, and was tried upon the issues made by the statute, without any special answers.

Demurrers to each paragraph of the complaint were overruled and exceptions reserved, and the jury upon the trial returned separate verdicts as to each paragraph, and also answers to interrogatories. The amount recovered on the first paragraph was $ 608.33 1/3, and on the second paragraph $ 1,891.66 2/3.

Separate judgments were rendered on each paragraph upon the overruling of appellant's motion for a new trial, and some intermediate motions, on the 20th day of June, 1892, for the amount of the respective verdicts aggregating $ 2,500.

Seven errors have been assigned in this court, by appellant, which, so far as they have been discussed, will be stated and considered, in the course of this opinion, in the order adopted by counsel in presenting the same. A considerable amount is involved, and the controverted questions are important. The court, however, in this connection, takes pleasure in saying that the case has been fully and ably presented by learned counsel for the respective parties, in briefs, and also on oral argument.

It is alleged, in substance, in the first paragraph of the complaint, that the appellee is the nephew of Henry Puterbaugh, deceased, and that at the time of the filing of the claim the appellee was thirty years of age; that when appellee was eighteen months of age he entered the family of Henry Puterbaugh,--Henry being childless--"under the promise and agreement made and entered into by and between said Henry Puterbaugh, deceased, and the plaintiff's said father, that the said Henry Puterbaugh would take the plaintiff and raise him as his son, and in consideration of the plaintiff's services and of his sacrificing his own home would make him, the plaintiff, his heir and provide for him by will upon his death; that in pursuance of said contract the plaintiff's father released plaintiff from service, and gave to him his time, and consented that he should have the benefit and value of his said services during all the time he was a minor; and in pursuance of said agreement and contract the plaintiff came to the home of said decedent and lived with him as his son, up to the time he became twenty-one years of age."

Then follows the averments that the deceased owned a large farm of 390 acres, and carried on an extensive business at farming and raising cattle, and that the plaintiff assisted him and rendered such services as the decedent required in running the farm, and in latter years of decedent's life taking entire charge of, superintending and directing the operation of, his farm, and that the plaintiff received nothing for his services, and that the decedent frequently renewed and reiterated his promise "to make plaintiff his heir and provide for him in his last will," and that said Henry Puterbaugh died September 5th, 1889, suddenly, intestate, without having made any provision for plaintiff, and that his services so rendered said decedent were of the value of five thousand dollars.

The evidence fairly tends to prove that 'the mother of appellee died in 1862, when he was eighteen or twenty months old; that appellee was the youngest of seven children; that his father was a poor man and the brother of Henry Puterbaugh, who was well to do, and had no children; that when the mother of appellee was on her death bed, his uncle took appellee home with him, for the reason as stated by him at the time that appellee was unruly and made too much disturbance about the house for his sick mother, and that a few days after the death of his mother Henry Puterbaugh and father of appellee had a conversation in which his uncle asked permission to keep the boy, which was granted on condition that he would take appellee and do by him the same as though he was his own son. Henry Puterbaugh, in pursuance thereof, kept appellee, and appellee proved to be a good, faithful, and industrious boy and rendered efficient and valuable services for his uncle, until he arrived at the age of twenty-one years.

Henry Puterbaugh said on different occasions, in substance, that appellee was a very good and industrious boy, and that he run and managed the farm, did the work, and made the money, and that he, Henry, took care of the money; that he could always depend on appellee; that he had trained him right; that appellee looked after his affairs, attended to the work and managed the hands in all respects exactly right, and that appellee had been such an excellent boy he was going to do a good part by him.

Henry Puterbaugh died in a field on the farm, suddenly, childless, without having made any provision for appellee, except the real estate which he had agreed several years prior to his death to convey to him in payment for services rendered by appellee after he arrived at full age, and other considerations.

We have not attempted to set out in detail all of the evidence introduced on the trial by the respective parties relative to the issue raised by the first paragraph of the complaint. On this branch of the case, it will suffice to say that we have called attention to the substance of the material part of the evidence bearing on the question discussed by counsel.

Counsel for appellant say, with reference to the evidence in support of the first paragraph: "This paragraph is based upon an express promise, and not otherwise. It is not proved, nor is there a scintilla of evidence to uphold it. It is no question of a conflict, but an entire absence of all evidence to sustain this paragraph and the contract therein alleged. Nor, indeed, is there a line pointing to an implied promise to make the appellee the heir of the decedent. * * That the plaintiff must recover upon some definite theory of his complaint. He must recover secundum allegata or not at all."

The general rule undoubtedly is that a complaint must proceed upon some single definite theory which must be determined from the general scope and character of the pleading; and in order to entitle the plaintiff to recover, the evidence which he introduces must support that theory. Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, 3 N.E. 611; First Nat'l Bank v. Root, 107 Ind. 224, 8 N.E. 105; Wagner v. Winter, 122 Ind. 57, 23 N.E. 754; Schaffner v. Kober, 2 Ind.App. 409, 28 N.E. 871; Carter v. Lacy, 3 Ind.App. 54, 29 N.E. 168; Thompson v. State, ex rel., 3 Ind.App. 371, 28 N.E. 996.

The principles which underlie the authorities cited and relied on by counsel for appellant, are founded on sound reason, are sustained by a long and unbroken line of able decisions rendered by learned judges, and should be, and no doubt will be, adhered to and followed in all cases where applicable, but the question of prime importance for our present inquiry is whether they are in point in the case now under consideration.

On investigation, we have reached the conclusion that the first paragraph is not a complaint to recover on the alleged special contract therein mentioned, but, in the language of counsel for appellee, "it is a complaint to recover on the quantum meruit," the value of the services rendered. Had the appellee instituted an action upon the contract set out in the first paragraph for specific performance, he must necessarily have failed in the action, because such a contract can not be enforced.

The gist of the first paragraph of the complaint is to recover the value of the services alleged to have been rendered by appellee, before he arrived at the age of twenty-one years, for said decedent. The action is based on the rendition and value of the services and the agreement implied by law, under the circumstances stated, to pay therefor.

The gravamen of the action being to recover for the value of the services rendered, the averments in this paragraph of the complaint, relative to the promises and circumstances under which the services were rendered, are only material for the purpose of rebutting the presumption that such services were voluntarily rendered as a member of the family, without expectation of compensation.

The case in the first paragraph was evidently tried in the court below on this theory.

It is earnestly contended by counsel for appellant, in this connection, that the family relation which was created when appellee originally entered his uncle's family could not be changed into the relation of master and servant, except by pleading and proving an express contract; that in cases where the relation of master and servant was the one originally assumed, it was only necessary to a recovery to show facts from which an implied contract might arise; that the express contract laid in the first paragraph of the complaint must be proven before there could be a recovery thereon in this case in behalf of appellee; that an agreement of the parent to compensate the son for services rendered by the son while residing with his father, as a member of his family, may not be inferred from circumstances, and that the proof of an implied promise, or of such facts and circumstances as created an implied promise, would not sustain the verdict for appellee.

With some of the...