Roberts v. Roberts

• Decision Date: 13 July 1948
• Docket Number: 2383
• Citation: 196 P.2d 361,64 Wyo. 433
• Parties: BARBARA ROBERTS, Plaintiff and Appellant, v. DON ROBERTS, as Administrator of the estate of Ora P. Roberts, Deceased, Defendant and Respondent
• Court: Wyoming Supreme Court

196 P.2d 361

64 Wyo. 433

BARBARA ROBERTS, Plaintiff and Appellant, v. DON ROBERTS, as Administrator of the estate of Ora P. Roberts, Deceased, Defendant and Respondent

No. 2383

Supreme Court of Wyoming

July 13, 1948

Rehearing Denied 64 Wyo. 433 at 455.

APPEAL from District Court, Natrona County; H. R. CHRISTMAS, Judge.

Action by Barbara Roberts against Don Roberts, as administrator of the estate of Ora P. Roberts, deceased, on a claim for services performed for and moneys loaned to decedent by plaintiff. From a judgment entered upon a directed verdict in favor of defendant, plaintiff appeals.

Judgment reversed and cause remanded for a new trial.

For the Plaintiff and Appellant, the cause was submitted upon the brief of R. R. Rose and Chas. E. Winter of Casper, Wyoming and oral argument by Mr. Rose.

POINTS OF COUNSEL FOR APPELLANT

Entries in the books of account of one party may be received as admissions of the adverse party where their correctness has been assented to by the latter. It is not necessary that the person by whom the entry was made should be produced as a witness, or that other preliminary proof required by statute for the admission of books of account in favor of the party by or for whom they were kept should be adduced. If the correctness of the entries is admitted, they are admissible even though they are not original, or not regularly kept, and even though the items are not the subject of book charge under the shopbook rule. 32 C. J. S. 584.

In several jurisdictions the rule in such cases (continuing employment) is that the contract is a continuing one, and that the employee's right of action accrues and the statute begins to run when and only when the services are fully performed, or the employment otherwise terminated, in the absence of a general usage to the contrary, and it is immaterial whether the contract for the services is express or implied. 37 C. J. 824.

The contract of services was a continuous one, and the statute of limitations did not begin to run until the completion of the services. Ah How vs. Furth, 43 P. 639 Wash. 1896; Jackson v. Mull, 42 P. 603 (1895); Crampton v Logan, 63 N.E. 51; Schoonover v. Vachon, 22 N.E. 777; Schaffner v. Schaffner's Estate, 157 P. 402; Knight v. Knight, 35 N.E. 42.

For the Defendant and Respondent, the cause was submitted upon the brief and also oral argument of Wm. J. Wehrli of Casper Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

Lender's books are incompetent to prove loans to a decendent. The general rule is to the effect that a party's books of account are not admissible to prove a loan or cash payment in his favor. In such cases the shop book is not the primary or "best evidence" of the fact to be proved. It is within the power of the party at the time of making the loan or payment to require that some receipt or other memorandum be given to him. Cross v. Amoretti, 44 Wyo. 175, 9 P. 2d. 147. 84 A. L. R. Page 148.

It is uniformly held that memoranda are not independent evidence, even during the lifetime of the party making them. 6 Wyo. Page 444.

The right of a woman who lived with decedent without being legally married to him to recover for her services depends on whether she was induced by his fraud to believe that they were married. 34 C. J. S. 116.

It appears to be a well settled rule that a woman who knowingly and voluntarily lives in illicit relations with a man cannot recover on an implied contract for services rendered him during such relationship. Not only does the relationship as husband and wife negative that of master and servant, but such cohabitation, being in violation of principles of morality and chastity, and so against public policy, the law will not imply a promise to pay for services rendered under such circumstances. Willis v. Willis, 48 Wyo. 403, 49 P. 2d. 670.

A wife is not entitled to compensation for services rendered her husband. And where a woman lives with a man as his mistress or concubine, she can not recover for such services as are incidental to the relation in which they live, unless a contract for payment is shown. 40 Cyc. 2823. Stewart v. Waterman (Vermont), 123 A. 524.

Long delay in presenting or prosecuting a claim creates a strong presumption against its validity, particularly where the claim was not asserted in the lifetime of the alleged debtor. 34 C. J. S. 277.

To recover against the estate of the dead upon the promise of the dead, the living must establish the promise by testimony clear and convincing. Ott v. Craghan (N. J.) 165 A. 577.

A mere receipt for money is not sufficient to establish the existence of a debt, nor is a book account of sums of money lent to a person since deceased sufficient, in the absence of other evidence, to support a claim therefor against decedent's estate. 34 C. J. S. 284.

The claim of an executor against an estate must be presented within the same time as the claim of any other creditor, and if not so presented it is barred. Rodgers' Estate, 217 P. 678.

The time for an executor or administrator to present his claim is the same as that for any other claimant. It must be presented within the time fixed by the notice to creditors, otherwise it is barred. Bancroft's Probate Practice, Volume 3, Page 1508.

TIDBALL, District Judge. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

TIDBALL, District Judge.

In this case the trial court at the close of all the evidence directed a verdict for defendant. The plaintiff sued defendant, who was administrator of the estate of Ora P. Roberts for money, the petition containing three causes of action. The first two are for money claimed to be due plaintiff as wages for services rendered Ora P. Roberts in his lifetime, the first declaring upon an express contract and the second upon a quantum meruit or implied contract. The third cause is for money loaned deceased during his lifetime. The plaintiff claimed in her petition that the services were rendered and the money loaned during the period from February 18, 1927, to June 23, 1940, the date of Ora P. Roberts' death.

The plaintiff's petition was before this court on October 1, 1945, upon the question as to whether it stated good causes of action not barred by statutes of limitation and the question was then resolved in favor of the plaintiff, Barbara Roberts. See case reported in 162 P.2d 117. The opinion in that case should be read in conjunction with the present opinion, because in the former opinion all the facts leading up to the trial of the present case are stated and will not be repeated in detail again and we think also two of the questions of law raised in the present case by the defendant administrator and respondent were answered in that case in a manner contrary to the contention of the respondent in the present controversy, and will not be gone into again in this opinion except to point out that this court has already passed upon them in the former opinion.

When Ora P. Roberts died on June 23, 1940, Barbara Roberts, the plaintiff and appellant herein, was appointed administratrix of his estate and served as such till July 10, 1943, when she was succeeded by Don Roberts, the defendant and respondent herein. On April 22, 1941, she filed her claim in the estate for the wages earned and money loaned, claiming $ 7,400 for wages and $ 9,194.29 for money loaned. This claim was rejected by the District Judge handling this estate on September 21, 1942, but before that action was taken, claimant waived her claim for wages upon the theory that she being the wife of deceased, could not recover such wages. On February 2, 1943, this court decided that common law marriages entered into in Wyoming are void and that plaintiff was not the widow of deceased. On August 20, 1943, plaintiff and appellant filed what she designated as "Amendment to Claim of Barbara Roberts," in which amendment she set forth that her original claim for wages had been withdrawn or waived under the mistaken belief that she was the wife of Ora P. Roberts. On August 30, 1943, the amended claim was rejected by the District Judge who had previously rejected the claim on September 21, 1942. On September 25, 1943, the claim of plaintiff and appellant was rejected by Don Roberts, administrator, he concurring in the previous rejection of the claim by the District Judge on September 21, 1942. On November 27, 1943, this present action was begun and on September 29, 1944, a demurrer to plaintiff's petition was sustained by the trial court on the ground it failed to state a cause of action, and on October 20, 1944, judgment was entered by the trial court in favor of defendant based upon the ruling on the demurrer; and on October 1, 1945, this court reversed the ruling of the trial court, holding that the petition stated a cause of action. Thereafter the matter came on for trial to a jury in the District Court, another District Judge presiding, resulting in a directed verdict and judgment for defendant entered on April 18, 1947. One further date should be here stated and that is the date of November 1, 1934, when apparently through some ceremony performed at a neighboring ranch, in the presence of witnesses, and on the advise of a lawyer, the plaintiff and Ora P. Roberts declared themselves to be husband and wife, both believing that this constituted a valid common law marriage. (Roberts vs. Roberts, 58 Wyo. 438, 133 P.2d 492).

In our discussion of this case we are assuming that plaintiff and appellant honestly believed she was married to Ora P. Roberts on November 1, 1934. There is no evidence on that point from either side and respondent in his brief does not raise the question as to the good faith of plaintiff. In plaintiff's petition she alleges, "At said hearing (referring to the hearing before the ...