Sword v. Keith

• Decision Date: 29 January 1875
• Citation: 31 Mich. 247
• Court: Michigan Supreme Court
• Parties: James Sword and another v. Orson Keith

31 Mich. 247

James Sword and another v. Orson Keith

Supreme Court of Michigan

January 29, 1875

Submitted on Briefs October 29, 1874. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lenawee Circuit.^[+]

Keith, the defendant in error, presented his claim of one thousand dollars against the estate of deceased, before the commissioners appointed by the probate court to take proof of claims against the estate; and the commissioners having disallowed the claim, he appealed to the circuit court, where an issue was formed under the direction of the court, and the case was tried before a jury, who found a verdict in favor of Keith for the amount of his claim, upon which judgment was rendered; and the case is brought to this court by writ of error and bill of exceptions. Thirty-eight errors are assigned upon the rulings of the court upon the admission and rejection of evidence, the refusal of requests to charge, and the charge as given.

No question arises upon the pleadings. The evidence on the part of the claimant tended to show, that Samuel P. Durham, the deceased, was an uncle of claimant, and resided, during all the time while the material occurrences to which the evidence relates, in the town of Harmony, Chautauqua county, New York, where he continued to reside until the fall of the year 1865, when he removed to Lenawee county, Michigan, where he died in the summer of 1872; that while claimant was but a child, his father died, leaving claimant and his brother Edgar, some two years older, and their mother, in comparatively poor circumstances; that when Edgar was about seven years old, and afterwards, when claimant was about fourteen, the deceased took them respectively into his family, treating them as if they were his children,--he having no children of his own,--and they treating him as a father, until they respectively became of age; which, in claimant's case, was about the year 1852; that claimant was, during all the time, temperate and industrious, and that his labor was worth more than his support, and the title schooling furnished him, by four hundred dollars; that his clothing was cheap, and he received but little schooling; that shortly after becoming of age, claimant married, and about the year 1853, with his wife, went to live on a farm (in Harmony) then owned and occupied by deceased, which claimant seems to have worked upon shares, for from one to three years; deceased, during the first part of this time, residing on the same farm, and giving some assistance in improving and cultivating it, and then moving away, leaving claimant on the farm, which most of the evidence tends to show he worked as a tenant of deceased, paying him rent; but some of the evidence tends to show he worked for a part of the time on shares; that after having worked the farm in this way for a while, perhaps two or three years, some arrangement or agreement was made between them, by which claimant was to purchase the farm at thirty dollars per acre. But for some reason not very clearly explained, and not material to the case, this arrangement or contract seems to have been abandoned, and claimant continued to occupy it as a tenant, as most of the evidence tended to show, though some evidence on the part of defendants tends slightly to show that he occupied it for some part of the time as a purchaser under the above contract.

There was also evidence tending to show that claimant, while thus on the farm, and between the time when he went on in 1853 and March 2d, 1865, when he purchased it, put valuable and permanent improvements upon it by clearing it up, getting out stumps, erecting new buildings and repairing the old, setting out an orchard, etc., adding in this way about one thousand dollars to the value of the farm; that deceased encouraged him to make said improvements (though there was evidence on the part of defendants that many of these improvements were made or paid for by deceased); that while claimant and his brother were living with and working for deceased, the latter, to encourage them to labor and be industrious, frequently told them that after his death his whole estate should be divided between them, and he had expressed to others the same intention in their favor; and that he also said to other persons, that if claimant made improvements on the farm they would lose nothing, for he and Edgar were to have all his property when he was done with it; that after the brother Edgar became of age, deceased paid him one thousand dollars for his services, telling him at the time he should pay claimant the same amount, and then they could wait for the balance until he was done with the property; that prior to the execution of the paper executed by deceased and his wife, and given to claimant (a copy of which is given below), claimant became dissatisfied and uneasy because he had nothing to show for his work. He was afraid Durham might die, and he would get nothing for his improvements, and in consequence of this, deceased drew up and gave to claimant at the time of its date, a writing, of which the following is a copy, viz.:

"June 1st, 1858.

"This is to certify that I do agree to let Orson Keith have a claim on the farm he now occupies, or the amount of one thousand dollars, if I should die before I make a will.

"S. P. Durham,

"Prudence Durham."

There was also evidence tending to show that after this the deceased, on several occasions, told other persons, his neighbors, that claimant had worked faithfully for him, and he had given him his obligation in writing, for one thousand dollars (some of the witnesses say for improvements; others do not mention this, but rather imply that it was for services); and that in case claimant should purchase the farm, he intended to allow one thousand dollars on the purchase; and if not so applied, it was to be paid out of his property when he was done with it.

Claimant continued in the possession of the farm until March 2d, 1865, when it was deeded to him by deceased.

The evidence on the part of the claimant is direct, clear and positive, that this one thousand dollars, mentioned in the agreement above copied, was not allowed to claimant as part of the purchase money, deceased refusing so to allow it on the purchase, but saying in substance, that he must wait for that until he, deceased, was done with the property. The evidence on the part of the defense tended to show that the one thousand dollars was allowed on the purchase, as part of the price.

It was admitted on the trial that deceased died intestate.

The points raised are sufficiently indicated in the opinion.

Judgment affirmed, with costs.

Howell & Watts, and Walker & Weaver, for plaintiffs in error.

A. L. Millard, for defendant in error.

OPINION

Christiancy J.:

It will be necessary to notice separately many of the exceptions and assignments of error in this case, in detail.

The court, at the request of counsel for the claimant, charged the jury:

"1. If the jury find that the plaintiff rendered valuable services for the deceased, either before or after he was of age, under an understanding between them that he was to be compensated therefor in some way by a provision in the will of deceased, or otherwise, even if the understanding as to the mode of compensation at the time the services were rendered was not definite, if afterwards this written agreement was made in order to secure payment for the same to the plaintiff, then the consideration would be sufficient, and the agreement would be binding.

"2. If the jury find that the services rendered by the plaintiff, either before or after he became of age, or both, were rendered under an agreement and understanding between him and the deceased, that they were to be paid for out of the estate of said deceased, after his death, such agreement would be binding upon the estate, and would not be barred by the statute of limitations.

"3. If the jury find that the deceased, at the time he sold and deeded the farm to the plaintiff, refused to give him a claim on the farm, or to allow him anything on the purchase on account of the written agreement, then the agreement would, by its terms, be an obligation for the payment of one thousand dollars to the plaintiff out of his estate after his death.

"4. If the jury find that the services rendered, and the improvements made, by the plaintiff were valuable, and that there was an understanding between the deceased and him during the time they were being rendered and made, that he was to be compensated therefor by a provision in the will of the deceased to the amount thereof or more, and if subsequently it was agreed between the parties that this written agreement should be given in order to secure the plaintiff payment for the same in case it should happen that the deceased should die without making a will, and the written agreement was made for that purpose, then the consideration was sufficient, and the agreement would be binding on the deceased."

The court also charged upon his own motion, that, "if Durham, on account of this agreement, sold the farm to Keith for less than he (Durham) considered it worth, or deducted anything from the price, and Keith accepted the conveyance in satisfaction of the writing, and as payment of the one thousand dollars, the agreement was fulfilled, and Keith cannot recover.

These charges were, so far as they went, I think, entirely correct and fair, and warranted by the evidence in the case. And this sufficiently disposes of all questions touching the true construction of the written agreement. The requests of the defendant upon this point were erroneous and properly refused. But the charges above given did not exhaust all the hypotheses or state...