Thomas v. Fitzgerald's Estate

• Decision Date: 06 July 1927
• Docket Number: No. 4189.,4189.
• Citation: Thomas v. Fitzgerald's Estate, 297 S.W. 425 (Mo. App. 1927)
• Parties: THOMAS v. FITZGERALD'S ESTATE
• Court: Missouri Court of Appeals

297 S.W. 425

THOMAS v.FITZGERALD'S ESTATE

No. 4189.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Appeal from Circuit Court, Shannon County; B. P. Dorris, Judge.

Proceeding by Noah Thomas for the allowance of a claim against the estate of Ed. Fitzgerald, deceased, George S. Wattles, administrator, originating in the probate court and brought to circuit court.From a judgment allowing the claim, the administrator appeals.Reversed and remanded.

L. N. Searcy, of Eminence, and Green, Green & Green, of West Plains, for appellant.

Cunningham & McClellan, of Eminence, for respondent.

BRADLEY, J.

This cause originated in the probate court of Shannon county and is based on a demand by respondent against the estate of Ed. Fitzgerald, deceased.The cause reached the circuit court and was tried before the court and a jury.The verdict was for the full amount demanded, judgment followed, and in due course came this appeal.

For convenience we shall refer to the parties as plaintiff and defendant.Plaintiff's claim or demand is for the sum of $2,413, and is alleged to be for "work and labor performed for debtor in caring for farm, stock, and other ordinary farm work and for caring for deceased during his lifetime, from the 1st of September, 1915, to the present date (October 12, 1925), being 10 years and 42 days."In the circuit courtdefendant field an answer, denying generally the allegations of plaintiff's demand, denied that deceased was indebted to plaintiff in any sum for work and labor, and also pleaded the 5 years' statute of limitations as to that part of the demand accruing more than 5 years prior to the death of deceased.Plaintiff filed a reply, denying generally the new matter, and alleged that the account or demand was for continuous service from September 1, 1915, to and including October 12, 1925.

Error is assigned (1) on the refusal of an instruction in the nature of a demurrer to the evidence at the close of the case; (2) on the admission of evidence; (3) on the exclusion of evidence; (4) on instructions given for plaintiff; and (5) on instructions requested by defendant and refused.

Learned counsel for plaintiff in their brief state that "this is an action in quantum meruit under an implied contract for work and labor performed."The deceased was an old bachelor and lived on a ranch near Monteer in Shannon county, and had accumulated in his day considerable property.Plaintiff had no family and lived with deceased for many years and did most of the household work and also did other work at times about and on the place.One theory advanced by the defense is that whatever benefits plaintiff and deceased may have received from each other were reciprocal in nature, and that neither contemplated additional charge or pay for services rendered by the one for the other.

Plaintiff's evidence tended to show that during most of the time stated in the claim he stayed at the home of deceased and when there did practically all of the housework and at times assisted in rounding up the cattle, which usually consisted of 100 head, and when present assisted in the feeding, and did other work on and about the place; that what he did was worth, as estimated by the witnesses, from $1 to $1.50 per day and board.

Mrs. May Cooley testified that "7 or 8 years ago" deceased said to her that Noah (plaintiff) was taking care of things; that he did not know what he was giving Noah or what he was going to get.Jack Culpepper testified that "about 2 years ago" deceased came to his home one night and on that occasion stated that he had not paid Noah to amount to anything, but that he intended for him to have "the bigger part of what he had left, as Noah stayed with him and helped take care of him."

Defendant's evidence was to the effect that plaintiff was at the home of deceased during most of the period alleged, and that during this time did some of the household work, but that he did not do very much other work about the place.G. M. Seever testified that in the spring or summer of 1925 one of deceased's gates was down for two or three weeks, and the cattle got out and bothered the neighbors, and that he asked deceased to fix the gate, and that deceased said that he did not have any one to fix it; that he could not get Noah to do anything; that he had offered to pay Noah to work, but that he could not get him to.Seever further testified that plaintiff was "a great hand to stay in town."

W. C. Righter testified that about 1921he wanted to find out about wages and that on that occasion deceased said to him that he(deceased) did not have plaintiff hired by the year; that Noah took care of the cattle for him, and that he furnished him a horse; and that when he worked he paid him by the day the same as any other man.

B. C. Hunt stated that on an occasion, time not given, when he was helping take care of some hay for deceased, help was short., and that he told deceased that they needed some help, and that Noah came over on his horse. and that he(witness) asked deceased why he did not use Noah, and that Noah said he would not pitch hay; that he was cooking for his board and would not pitch hay for anybody; that deceased said he would pay Noah if he would help.

G. W. Deffner testified that "5 or 6 years ago" deceased came to his home looking for some one to make post, and that he asked deceased why Noah did not make the post, and that deceased said that Noah was not at home and had not been for some time, and that he did not know that he could get him to make the post if he were at home; that he and Noah had made a bargain "that Noah was to stay there and do the cooking and chores for his board and lodging."

Will Casey testified that, a short time before the death of deceased, the deceased told him that when Noah worked he paid him, and that when he did not do anything but the cooking and dishwashing he did not pay him; that Noah got so he did not do anything.Defendant also introduced evidence that shortly before his death deceased discussed with others about what he owed, which was very little, and that in these discussions he did not mention owing plaintiff.

Plaintiff's cause was submitted to the jury on the theory that he was entitled to recover for all the work he did about the house or on the farm during the whole period alleged.Such is the purport of plaintiff's first instruction.This instruction, however, contained a proviso to the effect that plaintiff could not recover if it was found that he did not intend to charge for his services.Plaintiff's second instruction told the jury that, although it was found that deceased and plaintiff lived together in the same house under an agreement that plaintiff was to do the cooking, and that deceased was to furnish the table and furnish plaintiff a horse, and that such services were by each rendered, yet that, if it were found that plaintiff did other and further work on the farm and premises or in caring for deceased or performed any household work other than cooking, he could recover for such additional work.Plaintiff's third instruction submitted in effect the same theory as submitted in the second.

Defendant's first instruction told the jury that before plaintiff could recover it must be found (1) that the services mentioned in the evidence were in fact rendered; (2) that plaintiff had not been paid for said services; and (3) that, even though it were found that services were rendered and that plaintiff had hot been paid, still plaintiff could not recover, unless it be found that at the time the services were rendered plaintiff intended to charge for same in addition to his board and lodging.

We do not think that this record will support the conclusion that what is termed in the law the family relation existed between plaintiff and deceased.Shern et al. v. Sims(Mo. App.)258 S. W. 1029.Whatever the relation was as to an agreement or understanding between plaintiff and deceased was in the nature of a business relation.Where the family relation does not exist the burden is on the one accepting personal services to show that such services were rendered gratuitously; otherwise, a contract for compensation will be implied.Shern et al. v. Sims, supra.If the plaintiff's theory as submitted in his first instruction be found to be the correct one, then he can recover the reasonable value for all services rendered for which he intended at the time to charge, if not barred by limitation, and for which he has not been paid.If it be found as predicated in plaintiff's second instruction then he can recover only for such additional work not barred and for which he intended at the time to charge.Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74.It is our conclusion that what may be termed the demurrer was properly refused.

Plaintiff, over objection, was permitted to testify generally, except that he was not paid for his services.Section 5410, R. S. 1919, among other things, provides that, where one of the original parties to the contract or...