Thomas v. Carey

• Decision Date: 16 October 1899
• Citation: 26 Colo. 485,58 P. 1093
• Parties: THOMAS v. CAREY.
• Court: Colorado Supreme Court

58 P. 1093

26 Colo. 485

THOMAS v. CAREY.

Supreme Court of Colorado

October 16, 1899

Appeal from district court, El Paso county.

Action by Mary A. Carey against Thomas Thomas. Judgment for plaintiff, and defendant appeals. Reversed.

June 18, 1896, appellee, as plaintiff, commenced this action to recover from appellant, as defendant, upon four causes of action, as follows: (1) Balance for the reasonable value of services rendered between the 1st day of March, 1885, and the 11th day of August, 1895. (2) Balance for the reasonable value of board, lodging, washing, and mending of clothing furnished and performed between the 1st day of January, 1880 and the 1st day of March, 1885. This indebtedness she alleges appellant has repeatedly acknowledged and promised to pay her, within five years previous to the commencement of this action. (3) For money loaned appellant prior to the 1st day of April, 1892. (4) For the value of certain personal property appropriated by appellant to his own use prior to the 1st day of August, 1895. For answer to the first cause of action, appellant (1) denied that appellee had performed many of the services specified; admits there was no specific agreement between them regarding what she should receive for such services as she had performed, except as below stated and avers that those mentioned were not worth the sum claimed; (2) pleads payment in full, under special agreement regarding such services, in addition to furnishing her with various and sundry sums of money for purposes other than those mentioned in such agreement. To the second cause of action he answered, (1) denying that the items mentioned are of the reasonable value claimed; (2) denies promise to pay within six years; (3) pleads payment in full under special contract; (4) the claim is barred by statute of limitations. To the third cause of action he answered, (1) denying generally the indebtedness therein specified; (2) that it was barred by the statute. To the fourth cause of action his answer was a general denial. To this answer a replication was filed, denying the affirmative defenses. On the trial of the issues there was verdict and judgment for appellee, from which the defendant appeals, assigning as errors (1) refusal to instruct the jury to find for appellant on second and third causes of action, because barred by the statute of limitations, and in submitting to the jury the question of a new promise as to these causes; (2) admitting evidence of offers of compromise alleged to have been made by appellant (3) admitting evidence of the value of property belonging to appellant; (4) error in instructions given.

Blackmer & McAllister, for appellant.

Gunnell & Hamlin and J. Reid Crowell, for appellee.

GABBERT J. (after stating the facts).

From the complaint it appears that the second cause of action was barred by the statute of limitations, unless an action could be maintained thereon upon a promise of appellant which would remove the bar. He had pleaded the statute as a defense to this cause of action, and also to the third. As to the latter, it appears, in so far as the evidence relates to money loaned with a sufficient degree of certainty as to amount which would justify its consideration, that it is also barred by the statute, unless revived by the promise of appellant. This was the view entertained by the trial judge, and is not now questioned by counsel for appellee. The particular reason assigned by counsel for appellant in support of the proposition that the court erred in refusing to instruct the jury to return a verdict for him on these two causes of action, and in submitting to them the question of a new promise as to these causes, is that there was no evidence of a promise on the part of appellant to pay this indebtedness that would take it without the statute; so that, in considering the first assignment of error, the real question to determine is whether or not there was sufficient evidence from which it could be inferred that appellant, within six years prior to the commencement of this action, had promised appellee to pay the indebtedness represented by either of these two causes of action. The only evidence on this subject to which our attention is directed, as bearing on the question of the promise of appellant, is the evidence of appellee herself, from which we quote the following questions and answers: 'Q. Since you left, have you had some talk with him? A. Yes. * * * Q. State what the defendant has wanted to pay you, and how he wanted to pay you for your services, since you left. A. He wanted to give me an income for life. He said the money coming to me was too much to give to me. * * * Q. From the time you first went to live with Thomas until you left, what has he ever said to you with reference to your compensation, and when and how were you to receive it? A. I understood that I was to get half of what was made. Q. What did Thomas say to you about that? A. He used to say that I would be well provided for, that I would not have to work my fingers off all my life, that in a few years the place we had built up would make us a good living, and that he would leave me well provided for.' It appears that these parties had lived together on a ranch for something like 10 years subsequent to the 1st day of March, 1885; that prior to that date appellant had boarded with appellee at a house which she occupied in Colorado Springs; that the parties had some difficulty not long prior to the commencement of this action, which caused appellee to leave the ranch; and that she was requested to state what conversation had taken place between them since she left, in response to which she testified as above. With this explanation, it is apparent that the foregoing conversation refers to services which appellee claims to have rendered appellant after they went to live together on the ranch, and has no reference whatever to the indebtedness which she claims under her second and third causes of action; but, even if it did,--a point noticed later,--it was insufficient to establish a promise to pay the indebtedness claimes under either of these causes. On the subject of board, which is the basis of her claim, as stated in her second cause of action, she testified on cross-examination as follows: 'Q. Did you ever ask Thomas to pay for the board he got in the city? A. Yes, sir. Q. When was the first time you asked him to pay for it? A. I can't tell that. I kept asking him for money. Q. About when was the first time you asked him to pay for that board? A. I can't tell that. * * * Q. Tell when it was, if you remember, you first asked him for it. A. I asked him for a settlement of all. Q. When? A. Some years ago; not for the board money alone, but I used to ask at different times, but I can't give any special dates. * * * Q. Did he ever pay you anything for it? A. He has given me sometimes as much as five dollars at a time, and a little money along. He always said that he would pay me liberally. * * * Q. Did you ever tell him he was to pay you forty dollars a month for that board, before this suit was commenced? A. I told him he owed me for all what I say. He would say: 'Put a price. Make a statement.' * * * Q. Did you make a price? A. I put it at that price,--forty dollars per month. Q. It was before you went to the ranch that you had that conversation? A. Yes.' None of the testimony we have quoted was sufficient to constitute a promise to pay either of the claims represented by the second and third causes of action. The statements attributed to appellant lacked these requisites. Neither was an unqualified acknowledgment of an indebtedness upon either account mentioned in either of these causes, nor did they establish an express promise to pay either of such accounts, one or the other of which was an essential element in order to constitute a promise to pay a debt barred by the statute, which it is sought to recover on the strength of such promise (Bell v. Morrison, 1 Pet. 351, 7 L.Ed. 174; Palmer v. Gillespie, 95 Pa. St. 340; Adams v. Tucker, 6 Colo.App. 393, 40 P. 783; 1 Wood, Lim. § 68); for loose and general expressions with respect to the acknowledgment of a debt barred by the statute, which are merely casual, are insufficient to remove the bar (Bell v. Morrison, supra). It certainly cannot be said that either of the conversations detailed referred to indebtedness generally, which appellee claimed appellant was owing her; but, even if it could be successfully maintained they did, then they do not establish any promise sufficient to remove the bar of the statute as to those claims against which it had run, because, if such statements or admissions on behalf of appellant only referred to a balance on the aggregate of several claims, some of which were barred by the statute, such admissions would not establish a promise upon his part to pay those so barred. Suter v. Sheeler, 22 Pa. St. 308; Buckingham v. Smith, 23 Conn. 453; 1 Wood, Lim. § 68; Palmer v. Gillespie, supra; Walker v. Griggs, 32 Ga. 119; Boxley v. Gayle, 19 Ala. 151.

Notwithstanding the insufficiency of the evidence to establish a promise on the part of appellant to pay the indebtedness represented by these two causes, which would allow an action to be maintained thereon, the court submitted to the jury the question of whether or not such promise as the law requires in cases of this character had been made by appellant. This was clearly erroneous. Where there is no dispute as to the facts which...