Roney v. Dunleary

• Decision Date: 27 November 1906
• Docket Number: No. 5,888.,5,888.
• Parties: RONEY v. DUNLEARY.
• Court: Indiana Appellate Court

39 Ind.App. 108

79 N.E. 398

RONEY

v.DUNLEARY.

No. 5,888.

Appellate Court of Indiana, Division No. 1.

Nov. 27, 1906.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Mary Dunleary against William H. Roney, as administrator of the estate of Patrick Mehan, deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed, with instructions to sustain defendant's motion for judgment.

Shirts & Fertig, R. P. Neal, and M. T. Shiel, for appellant. Roberts & Vestal, for appellee.

BLACK, J.

The claim of the appellee against the appellant, as administrator of the estate of Patrick Mehan, deceased, contained two paragraphs, the first of which was based upon a written promise to pay the appellee $2.50 each week, from a date stated, as long as she remained in his service; and in the second paragraph the claimant sought to recover upon a check given by the decedent upon a certain bank, which upon presentation the bank refused to pay, the check being as follows: “Cicero, Ind., April 9th, 1904. The Cicero Bank: Pay to the order of Mary Dunleary ($1,000.00) one thousand dollars. Pat Mehan.” Without the filing of an answer, the cause was tried by jury, and a general verdict in favor of the appellee for $1,271.75 was returned, with special findings in answer to interrogatories. The appellant moved the court to give judgment in favor of the claimant for the sum of $198.75 and costs, with interest thereon from the date of the return of the verdict, upon the special findings of fact returned by the jury in answer to interrogatories and notwithstanding the general verdict, and because said special findings were inconsistent with the general verdict, and according to said special findings the claimant wae entitled to judgment for that sum and no more. The court overruled this motion, and rendered judgment in favor of the appellee for the full amount of the general verdict.

By the answers to interrogatories the jury specially found, in substance: That the appellee accepted employment by the decedent May 4, 1902, to work for him at his home in Hamilton county, and the decedent executed the written agreement mentioned in the first paragraph of claim, by the terms of which he agreed to pay her $2.50 per week as long as she remained in his service; the agreement not specifying any particular kind of service. She continued to work for him under the terms of that agreement from that date until his death. The decedent made partial payments to her for her services under this agreement; and the jury specially found that there was due the claimant from the decedent, at the time of his death, for services rendered under this agreement, the sum of $198.75; and that on April 9, 1904, he was indebted to her in the sum of $1,187.50 in consideration of labor, love, and affection. It was found that April 9, 1904, the decedent signed a check payable to the claimant and drawn on the Cicero Bank for $1,000, which check was then delivered to the claimant; that he at that time intended that she should collect this check and receive said sum of $1,000; that he had sufficient mental capacity to transact business; that one E. G. Dunn afterwards, and before the death of the decedent, cashed this check at a bank at Elwood. The check was presented for payment to the Cicero Bank during the lifetime of the decedent, by a correspondent bank at Indianapolis. When it was so presented to the Cicero Bank, payment thereof was refused. The decedent at all times had sufficient funds in the Cicero Bank to pay the check. Question: “What money or thing of value did the decedent receive from said Mary Dunleary, or from any...