Smith v. Estate of Davis
| Decision Date | 03 May 1921 |
| Citation | 230 S.W. 670,206 Mo.App. 446 |
| Parties | FRED SMITH, Respondent, v. ESTATE OF JACKSON DAVIS, Deceased, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Charles L. Henson, Judge.
REVERSED.
Judgment reversed.
Hays & Hartley, Allen & Allen and Mann & Mann, for appellant.
(1) The appellant's peremptory instruction should have been given. Respondent made no case by his evidence and is not entitled to recover. (a) Because respondent did the last work for deceased prior to his marriage in 1903 when his cause of action then accrued. His suit was filed in 1918 and was barred by the Statute of Limitations, R. S. 1909, section 1889. Boyd v. Buchanan, 176 Mo.App. 56; McGrath v. O'Hare, 175 Mo.App. 9; Taylor v. Tieman, 111 N.W. 229; Martin v. Martin Estate, 84 N.W. 439; Loper v. Estate of Sheldon, 97 N.W. 524. And the Statute of Limitations did not have to be pleaded in a case originating as this did in the probate court. Wencker v Thompson, Admr., 96 Mo.App. 59-66; Henshaw v Warren, 167 Mo.App. 372-373; Sandusky v. Courtney, 168 Mo.App. 327. (b) Because respondent was taken into the family of deceased as an orphan of tender years, unable to support himself, and raised until he was twenty-one years of age, fed, clothed and schooled and treated as a member of the family. Under such circumstances no implied contract to pay for his services can be raised. They are gratuitous, Ryan v. Lynch. 9 Mo.App. 18; Guenther v. Birkicht, Admr., 22 Mo. 439; Wood v. Land, 30 Mo.App. 176; Morris v. Barnes, 35 Mo. 412; Sloan v. Dale, 90 Mo.App. 87, and Cases cited under other points and authorities. (c) Because the evidence utterly fails to show such a contract as the law requires should be entered into in order to support this action after the death of the deceased. In fact it fails to show any contract at all. There must be an understanding between the debtor or creditor capable of enforcement at law. No such understanding is shown in this case. On the contrary the evidence rebuts it. Taylor v. George, 176 Mo.App. 215-219; Crowley v. Dagley, 174 Mo.App. 565-566, and cases cited. (b) Because the evidence totally fails to show that whatever work the respondent did in the family of the deceased while he was a member thereof, or any of his acts, point to a contract between himself and the deceased which cannot in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of an understanding that his services should be paid for and which would not have been done without such an understanding. Rosenwald v. Middlebrook, 188 Mo. 93. (e) Because no contract under the circumstances to pay the respondent for his services while a member of the family of deceased can be implied, because the evidence fails to show that there was a contractual intention and understanding, an expectation to pay wages by the deceased and an expectation to receive wages by the respondent. Brand v. Ray, 156 Mo.App. 630; Bircher v. Boemler, 204 Mo. 555, 562, 563; Kostuba v. Miller, 137 Mo. 161-175; Earhart v. Dietrich, 118 Mo. 418; Wood v. Land, 30 Mo.App. 176. (f) The evidence consists of the conversation of the deceased occurring in most part long after the respondent had left his home and been set up by deceased in business for himself, and only shows at most an expression of an intention to bestow bounty and such expressions (particularly in the total absence of a scintilla of evidence tending to show that respondent ever expected to receive a bounty), falls far short of giving respondent a cause of action. Clow v. Wormington, 206 S.W. 415, 416; and cases cited (Springfield Court of Appeals). (g) Because the evidence only at most shows an expression of an intention on the part of the deceased to in some manner remember respondent in his will, and the expression of an intention to bestow a bounty and an expectation to receive a bounty (not shown here) will not suffice, and an expectation to be made the beneficiary in a will is not sufficient. "There must be an understanding between the debtor and creditor capable of enforcement at law." Taylor v. George, 176 Mo.App. 215-219; Clow v. Wormington, 206 S.W. 415; Brand v. Ray, 156 Mo.App. 622; Crowley v. Dagley, 147 Mo.App. 561; Bircher v. Boemler, 204 Mo. 554-563, and cases cited. (h) Because respondent upon reaching his legal majority married and his services to the deceased stopped, in fact, proof shows that he worked for himself the year before he married. No contract capable of enforcement at law could have been made prior to that time because respondent was a minor incapable of contracting. As far as the evidence shows he pursued the even tenor of his way as a member of the family until he married an moved under a roof of his own. Any promise made under the circumstances, as shown by the evidence, on the part of the deceased, was bound to have been a mere voluntary matter on his part and not binding or sufficient to constitute a contract enforced by law. Asbury v. Hicklin, 181 Mo. 676. (2) The court erred in excluding the testimony of G. H. Davis, Ben Pearce and Martha Davis, the son, son-in-law and widow, respectively, of the deceased, and in overruling the appellant's offer to prove facts in direct contradiction of the testimony offered by respondent by said witnesses. These witnesses were not disqualified because of their interests in the estate or the subject matter of the litigation. R. S. 1909, section 6354; Norvell v. Cooper, 155 Mo.App. 445; Cole v. Waters, 164 Mo.App. 567; Gray v. Doubikin, 188 Mo.App. 667-672; McKee v. Downing, 224 Mo. 115. (3) The court erred in giving plaintiff's instruction No. 1. This instruction tells the jury that if they find from the evidence that plaintiff and defendant Jackson Davis entered into the contract alleged and that plaintiff fully performed the contract on his part, etc., that the plaintiff can recover. It is reversible error to give an instruction referring the jury to the petition for the facts to be found. Instructions should be predicated on the facts in evidence and should refer the jury to the evidence and not to the pleadings. Small v. I. & F. Co., 179 Mo.App. 465; Bank v. Dowler, 163 Mo.App. 68; Sinnamon v. Moore, 161 Mo.App. 168; Webb v. Carter, 121 Mo.App. 147; Jaffi v. Railroad, 205 Mo. 450. (4) Again this plaintiff's instruction No. 1 is erroneous because it tells the jury that if it finds there was a contract as alleged, then under the pleadings and the evidence your verdict must be for the plaintiff, and you will assess his damages at such sum as you may believe from the evidence may be the reasonable value of the services rendered by plaintiff to decedent Jackson Davis, without confining plaintiff's right to compensation, for services rendered from and after the date of the alleged contract. This instruction as drawn allowed the plaintiff to recover the reasonable value of his services from the time he was eight years old to the end of an indefinite period which is clearly erroneous. This was plaintiff's main instruction covering his entire case and the omission is not cured by any instruction asked by the defendant. Wojtylak v. Coal Co., 188 Mo. 260; State ex rel. v. Ellison, 272 Mo. 571; State v. Herrell, 97 Mo. 105; Hall v. Coal & Coke Co., 260 Mo. 367; Traylor v. White, 185 Mo.App. 331.
T. S. Heffernan and Moore, Barrett & Moore, for respondent.
(1) Where a contract calls for the performance of services and the extent and value thereof appear speculative and difficult to admeasure, such as caring for old people during life etc., and the consideration is equally indefinite and speculative, a specific remedy would be in equity for the specific performance of the same, however, on such a contract an action at law lies against the estate, on quantum meruit and the measure of damages is the value of the services rendered. Hall v. Gitman, 121 Mo.App. 630; Koch v. Hebel, 32 Mo.App. 103; Walker v. Gray's Estate, 73 Mo.App. 89. (2) Where one performs services for another, under an agreement or understanding, and on request, without any agreement or understanding as to wages or remuneration, the law implies a promise on the part of the party requesting and accepting the services to pay a reasonable compensation, unless there is a family relation, and the party performing the services can recover for the same on quantum meruit. Christianson v. McDermott Est., 123 Mo.App. 448; Fry v. Fry, 119 Mo.App. 476; Lillard v. Wilson, 178 Mo. 153; Sprague v. Sea, 152 Mo. 327. (3) An expressed intention to give is little short of a promise to give, and when acted upon by the donee, to his advantage, with the knowledge of the donor, the effect of a promise should be given it. Hubbard v. Hubbard, 140 Mo. 308; Dozier v. Mastin, 94 Mo. 328; McQuitly v. Wilhite, 247 Mo. 163. (4) A promise to will property will be enforced, and the donee, if suit for specific performance is not brought, may sue on the quantum meruit. 121 Mo.App. cited above; Berg v. Morreau, 199 Mo. 416; Clark v. Cordry, 69 Mo.App. 6. (5) And it matters not in what form the remuneration is expected just so it is expected, such as by will, devise, etc., and it is of no effect if received in a way not expected just so there is an expectation of remuneration in some form and the expectation can be shown by circumstances. Christianson v. McDermott Estate, and Fry v. Fry, above cited. (6) The above cases further holding that proof made of declarations of decedent in the presence of the donee, or proof that he declared that he had informed the donee that he would be paid for his services was sufficient to submit to the jury the question whether the services were rendered gratuitously because of the family relation or on an understanding that the donee...
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