Reece v. Reece, 285

• Decision Date: 03 August 1965
• Docket Number: No. 285,285
• Citation: 239 Md. 649,212 A.2d 468
• Parties: Robert M. REECE, Adm'r, C.T.A. of Estate of Ida M. Rhoads v. S. Earl REECE.
• Court: Maryland Court of Appeals

Page 649

239 Md. 649

212 A.2d 468

Robert M. REECE, Adm'r, C.T.A. of Estate of Ida M. Rhoads v. S. Earl REECE.

No. 285.

Court of Appeals of Maryland.

Aug. 3, 1965.

Horace P. Whitworth, Jr., Westernport, for appellant.

John F. Somerville, Jr., Keyser, W. Va., for appellee.

Before HAMMOND, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

BARNES, Judge.

This is an appeal from a judgment entered by the Circuit Court for Garrett County in favor of S. Earl Reece, appellee (plaintiff below), in the amount of $34,200, for alleged personal services performed during the period 1930-1949 for appellant's decedent, Ida M. Rhoads. We are asked to reverse the judgment on the ground that there was no legally sufficient evidence upon which the appellee could recover, and because the action is barred by the statute of limitations.

The parties to this appeal are brothers, and both live in Westernport, in Allegany County. Ida M. Rhoads, was their aunt and also a resident of Westernport until her death on December 30, 1959. Upon her death the appellant, Robert M. Reece, probated a Last Will and Testament dated March 22, 1956 in the Orphans' Court for Allegany County and qualified as administrator cum testamento annexo of her estate. On August 5, 1960, four days before the administrator's notice to creditors was to expire, the appellee, S. Earl Reece, filed a claim against the estate in the amount of $53,500, a claim which the administrator rejected in writing on October 10, 1960. Earl then filed suit on April 7, 1961 in the Circuit Court for Allegany County; the case was later removed to Washington County, and then removed again to Garrett, where it was heard by the court without a jury on January 17, 1964.

Plaintiff claimed in his declaration that he had rendered personal services of substantial value to the Woodland Lumber Company, a corporation of which both he and Miss Rhoads were officers, directors, and stockholders, from 1930 until its dissolution in 1952, and that he had given advice to Miss Rhoads individually in connection with her business and personal affairs from 1930 until the date of her death in 1959. His cause of action is based upon two written documents, not under seal, both of which are dated December 2, 1949. Both are set forth in the footnote below; both are rough in appearance, and the typing on each, very poor. ¹

The testimony before Judge Hamill was not lengthy and consisted of but three witnesses. The first witness, William H Jenkins, as the Chief Deputy Register of Wills for Allegany County, testified that the signature on the will dated March 22, 1956 was that of Ida M. Rhoads; that the docket entries for the Rhoads estate show a claim filed by the plaintiff on August 5, 1960 in the amount of $53,500; and that his files contained a carbon copy of a letter from the defendant to the plaintiff rejecting the claim. Verified copies of the will, the docket entries, and the letter were introduced into evidence.

The second witness was Arthur P. Myers, a handwriting expert of approximately forty years' experience, whose qualifications were admitted. After familiarizing the court with the methods he employed (and with the circumstances under which he was retained as an expert in this case), he testified that the evidence was 'irresistible, unanswerable and overwhelming' that the signatures of Ida M. Rhoads, on the two documents dated December 2, 1949 and on the probated will dated March 22, 1956, 'were written by one and the same person and written by one and the same source and one and the same mind.' The finding by the trial court that the signatures of Ida M. Rhoads to the documents dated December 2, 1949 were valid was fully sustained by this testimony.

The third witness was the plaintiff, S. Earl Reece. He testified that from 1930 until 1952 he was the 'territorial manager for an outside business' located in Baltimore, Maryland, the nature of which was not made clear, from which he earned 'approximately $4,500 to $5,000 a year.' However, he testified that he also had an association with Woodland Lumber Company 'from 1930 until it went out of business' in 1952. Plaintiff regularly attended corporation meetings, and, from time to time, served as a director, as chairman of the board of directors, president, general manager, and auditor. Certified letters from a Philadelphia bank establish that Mr. Reece was authorized to draw checks on the company's bank account. Certified copies of the articles of incorporation and of the minutes of various corporate meetings were introduced into evidence. The ownership of the company's stock was testified to be as follows:

Mrs. Susanna Campbell 25 shares

Jeremiah T. Robinhold 25 shares

S. Earl Reece 15 shares

Ida Mr. Rhoads 685 shares

These 750 shares outstanding at $100 per share equalled the total $75,000 capital authorized by the company's charter, as amended.

The plaintiff's testimony does not reveal the nature of the services which he claims to have performed either for the lumber company or for Ida Mr. Rhoads individually. He did testify that he received 'not one cent' from the corporation during its entire existence, and that he had 'no salary arrangement whatever' with it. In reply to a question 'Why didn't you receive any money?', he stated 'Well, the Woodland Lumber Company as it states right in those minutes, salaries were to be continued to Mr. Robinhold and Ida M. Rhoads only and I agreed I would be paid later on with a contract my aunt and myself had made.' He also testified that he did not 'intend to work all these years for nothing,' and that the work he did would be valued at more than $150.00 a month 'for the responsibility.' As indicated later, this evidence was subsequently stricken out by the trial court upon the motion of the defendant. The plaintiff Reece was not allowed by the trial court to testify whether he had any arrangement with anyone else in respect to remuneration for services rendered the company, nor what responsibilities would justify a salary of $150 a month, nor whether, during 'these 22 years' he regarded himself 'as performing services for Ida M. Rhoads.' Except for the recitals in the two written instruments of December 2, 1949 there is no evidence admitted by the trial court tending to show what 'advice' or services plaintiff rendered to the decedent 'concerning her personal affairs,' as asserted in Count II of his declaration.

At the conclusion of Mr. Reece's testimony the plaintiff rested his case. The defendant then moved: 1) to 'strike out all testimony of the plaintiff, Earl Reece, pertaining to the services performed for Woodland Lumber Company and for his testimony pertaining to the officers of the company'; 2) for a dismissal on the ground that the plaintiff had shown no right to relief. ² The lower court granted the defendant's first motion; it withheld a ruling on the second. In its written opinion of July 31, 1964 the court ordered that judgment be entered in favor of the plaintiff, but only as to services performed during the period from 1930 to 1949. The court reached the conclusion that the plaintiff was not entitled to judgment for services allegedly performed for the period December 2, 1949 to December 30, 1959 by the following process of reasoning: 1. The contract did not recite the performance of any services after December 2, 1949 nor did it contain a promise to perform any subsequent to that date. 2. Testimony by the plaintiff as to 'future services' would contravene the provisions of Article 35, Section 3 of the Annotated Code. 3. Since there was no proof by someone other than the plaintiff with regard to services performed after December 2, 1949 for the decedent, the plaintiff failed to establish a prima facie case as to those 'future services.'

The appellee disputes the propriety of the action taken by the court below with respect to the defendant's first motion. He urges us to hold that that court erred in striking the exhibits and testimony relative to the work performed by S. Earl Reece for the Woodland Lumber Company. These issues, however, are not properly before us. In the absence of a cross-appeal the appellee ordinarily cannot complain of adverse or erroneous rulings on the evidence and pleadings, even though they may be harmful or prejudicial. Harrison v. Robinette, 167 Md. 73, 83, 173 A. 60 (1934); Mezzanotte Constr. Co. v. Gibons, 219 Md. 178, 183, 148 A.2d 399 (1959); and see cases collected in 2 M.L.E., Appeals, section 353. In amy event he does not urge a reversal or modification of the judgment (as, for example, to allow a recovery for the period 1949 to 1960, the year of Miss Rhoads' death) but only that it be affirmed, so the point would appear to be academic.

The parties to this litigation entertain divergent theories of the law applicable to the facts as established. The defendant administrator, appellant here, contends that the plaintiff must offer proof that he performed the terms of the contract, that is, that he in fact rendered the services for which he now seeks to recover. He then postulates Art. 35, Sec. 3 as an insurmountable barrier, prohibiting plaintiff Reece from testifying a) that he made a contract with Ida M. Rhoads; b) that he rendered services for her (before or after the date of the contract); or c) that he rendered serfice to the corporation (on the theory that, since decedent owned the large majority of the shares, the fiction of the corporate entity should be disregarded). The appellant also believes it incumbent upon the plaintiff to show affirmatively that he has not been paid. In view of the inability of the plaintiff to testify to the necessary facts, and in the absence of other, independent testimony, the appellant submits that the plaintiff Reece has failed to produce legally sufficient evidence to entitle him to recover.

The appellee, for his part, does not urge any particular interpretation of the Evidence Act upon the Court. Rather,...