Spencer v. Clarke

• Decision Date: 29 April 1903
• Parties: SPENCER v. CLARKE.
• Court: Rhode Island Supreme Court

55 A. 329

26 R.I. 163

SPENCER

v. CLARKE.

Supreme Court of Rhode Island.

April 29, 1903.

Assumpsit by Isadora A. Spencer against Thomas W. D. Clarke, executor. Heard on defendant's petition for new trial. Petition denied.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Charles E. Salisbury and James C. Collins, Jr., for plaintiff.

Job S. Carpenter and Edwards & Angell, for defendant.

TILLINGHAST, J. This is an action of assumpsit, and is brought to recover the sum of $980, with interest from January 1, 1893, for services rendered by the plaintiff to the defendant's testator, Henry W. Tiffany, in the capacity of housekeeper. The facts in the case are substantially as follows: The plaintiff went to live with Mr. Tiffany in August, 1887, as his housekeeper, and remained in his service until about the 20th of August, 1896. She was to receive as compensation for her services the sum of $4 per week. This amount was regularly paid to her until December 27, 1887, at which time an agreement was entered into between her and Mr. Tiffany whereby he was to re-tain the wages which should become due to her, except so much thereof as she actually needed, and invest them for her so that she should receive 6 per cent. interest thereon. Under this agreement Tiffany retained plaintiff's wages until January 1, 1893, when, at the plaintiff's instance, she again received her pay regularly as at the first. The plaintiff's claim that she rendered the services for which she now claims compensation, and that she has not been paid therefor, is not disputed. In addition to the plea of the general issue, the defendant pleaded (1) the general statute of limitations, and (2) the statute of limitations as to actions against executors. To these special pleas the plaintiff replied, and joined issue. The only defense interposed was based upon said statutes of limitation. The jury returned a verdict in favor of the plaintiff for the sum of $1,516, and also found specially "that on the 2d day of July, 1901, the defendant executor did not deny the validity of the plaintiff's claim"; and the case is now before us on the defendant's petition for a new trial on the grounds (1) that the verdict is against the law and the evidence, and (2) that the presiding justice erred in refusing to charge the jury as requested by defendant.

The testimony shows that Mr. Tiffany agreed to keep the money which the plaintiff earned, and invest it for her, and that this arrangement was made at his suggestion. The plaintiff says: "Mr. Tiffany asked me what I did with my money. He talked to me as he would to a child of his own, and I told him I spent my money as fast as I got it. * * * I said I did not know of any other way of saving it except the bank, and that only brought four per cent. arid I did not put it there, and did not think I would. He encouraged me to save it, as be had authority to talk that. He was always talking about saving money. I asked him how to save my money to get benefit from it, and lie said to put it in mortgages and let it out. I asked him if he would not do it for me, and he said after awhile—he did not say he would at first—but after we talked it some he said he would do so if I wished. I said I was not any business woman, and he understood it better than I did, and if he would do so I would be glad to have him. I took him to be a friend of my father. He said he was interested in me because he thought a great deal of father, and under those circumstances he would do it. He kept my wages from that time on, with the exception of three or four payments, money that he let me have when I wanted more than what I had." This condition of affairs continued until the 1st of January, 1893, after which, upon plaintiff's request, her regular wages were again paid to her by said Tiffany. She continued in his employ at the same weekly compensation until about the 20th of August, 1896, making a total of a little over nine years' service. No demand was ever made upon Mr. Tiffany for any settlement regarding the money which he had retained out of her wages for investment as aforesaid until some time in August, 1896. She then had a brief interview with him, on the street, relating to the settling of that account. She asked him when she could see him to settle this account, and he replied, "I will try to come up, or will you come down?" meaning, by the latter part of the answer, when would she come down to his house at Crompton village. A short time afterwards she met him in Crompton village, and had some conversation with him about the matter, and he wanted her to go to the house, and see if they could not have a settlement; but she told him she would rather not go to the house, but when he was in the city to let her know, or to come to the house (her house), "and we would settle." Two or three months after that Mr. Tiffany went to the plaintiff's house on Burrington street, in the city of Providence, and had a conversation relating to a settlement of said account. With regard to this interview the plaintiff testifies: "He wanted to know if I would take a mortgage in part payment for the settlement of the bill, and I told him that I did not think I could; that I did not understand the business—I knew nothing about it—and the mortgage that he wished me to take he had a great deal of trouble with himself, and it was something that I did not wish to take on my hands. I wished a cash settlement with him. He demurred, and did not want to pay me in cash, but wanted me to take a mortgage in part payment. It was a small mortgage—I don't know what the amount was—on a cottage in Natick village." At this interview a bill was presented to Mr. Tiffany for the amount which the plaintiff claimed to be due to her, with interest there on, to which bill he made no objection, saying that the dates were correct, and the amount was also correct, but that the Interest was more than it should be. No settlement was effected, however, but he said he would come in again. In the latter part of 1897, or the first part of 1898, Mr. Tiffany again went where the plaintiff was living, and had an interview with her regarding the settlement. It was quite similar to the one last referred to. He did not want to pay the full amount in cash, but wanted her to take a mortgage in part payment. He found no fault with any part of the plaintiff's claim except as to the item of interest, and expressly admitted that all the amounts, dates, and wages were correct as stated. His only objection was to the amount of interest and to paying the claim in full in cash. "He said he would see me again, and make it all right, and we would come to a settlement the next day he saw me." This was the last time that the plaintiff saw Mr. Tiffany before his death.

During the time that Mr. Tiffany was withholding the plaintiff's wages under the arrangement above referred to, she had several familiar talks with him about the matter, in which she says: "He would talk about it, and tell me how much better it was for me to have my money at interest. But he never told me how he had invested it. He said, from time to time, how I was saving my money, and how much better it would be for me. That I would have something in my old age to take care of me." After 1893 when the plaintiff had commenced to receive her wages again, she also had conversations with him, and lie said he was sorry that she was not still continuing to let him have her wages, and save up more; to which plaintiff replied that she had use for her money at that time. Her mother had died, and she had a good many expenses, and needed the money which she drew and used up. The total amount of wages earned during the period covering the time that Mr. Tiffany retained them from the plaintiff was about $980, after deducting the payments made to her during said time. The plaintiff testifies that she never had any talk with Mr. Tiffany as to what he was doing with the money— that Is, as to the way he invested it—but that he told her he had invested it, and it was drawing good interest. In reply to the question by defendant's attorney, in cross-examination, "And you never asked him for any of the income from your money?" she answered: "I never did. He would say it would be all right, 'it is doing nicely,' whenever we talked about it. I knew he had several mortgages, and I supposed he had invested my money in that way, although I did not know it. Q. He always assured you it was invested in good securities? A. Yes, sir; he told me time and time again it would be all right, and it was all right with me."

At the first hearing in this...