Tuit v. Smith

• Decision Date: 06 October 1890
• Docket Number: 37
• Citation: 137 Pa. 35,20 A. 579
• Parties: B. J. TUIT v. L. E. SMITH
• Court: Pennsylvania Supreme Court

20 A. 579

B. J. TUIT v. L. E. SMITH

137 Pa. 35

No. 37

Supreme Court of Pennsylvania

October 6, 1890

Argued May 14, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF FAYETTE COUNTY.

No. 37 July Term 1890, Sup. Ct., court below, No. 137 June Term 1886, C.P.

On April 5, 1886, Belford J. Tuit brought ejectment against Laura E. Smith, for a certain house and lot in New Salem. The defendant pleaded not guilty.

At the trial on October 8, 1888, there was a verdict for the plaintiff. Judgment having been entered, on writ of error to No. 374 January Term 1889, Sup. Ct., the judgment was reversed and a new venire awarded: Smith v. Tuit, 127 Pa. 341.

At a second trial, on December 13, 1889, the plaintiff put in evidence a deed to himself for the property in dispute from Mrs. Sarah E. Smith, under whom the defendant also claimed which was dated August 29, 1885; also an article of agreement between himself and Mrs. Smith, with a bond given in pursuance thereof, and testified that the deed was executed and delivered and the bond was given under said agreement whereby he undertook to take Mrs. Smith and care for her the remainder of her life, in consideration of said conveyance.

The defendant put in evidence a paper purporting to be the will of Sarah E. Smith, dated October 31, 1884, portions of which were as follows:

"Second. I will and bequeath to Laura E. Smith all my real and personal property of whatsoever kind or nature, including house and lot that I purchased of William M. Jones in town of New Salem, adjoining lands of Jacob Allamon, Caleb Antram and others. I desire that the above described property, after the settlement of all my just debts, heretofore mentioned, shall be for his kindness and care toward me in sickness and in health, in watchfulness and care during all my natural life and at my decease the aforesaid property shall belong to the said Laura E. Smith, his heirs or assigns, with all rights liberties and hereditaments, forever and forever.

"Third. It is my will and desire that the said Laura E. Smith have possession of my house on the first day of November, 1884, and he take me with him, and that he take care of me as one of his own family."

This will is given fully in the report of the former trial.

The defendant then testified at length and adduced the testimony of other witnesses as to the way in which the execution of the will had been brought about, and as to the manner in which he had taken care of Mrs. Smith. He testified also that he had gone into possession of the property under the will; that Mrs. Smith had lived in the house with him until near September, 1885, when she went away, without having complained about his treatment of her.

Among the witnesses called by the plaintiff, in rebuttal, was Mrs. Sarah E. Smith, portions of whose testimony were as follows:

"Q. Well, you went to live with Smith there, and he said he gave you your choice of rooms? A. Not then, he didn't. Q. But when you came to move? A. Well, he spoke to me once about my choice of rooms, but I proposed to take the room my self. Q. Who fitted it up? A. Well, I suppose her and him. Q. Well, whose furniture was in the room? A. Why, mine; and she had a couple pieces of carpet; my carpet wouldn't fit. Q. What else? A. And a big chair, I think; well, after while I can't tell what -- I don't know what -- my carpet, or the chairs -- perhaps the carpet wasn't gone, but the chairs were taken up stairs. Q. They had taken what chairs up stairs? A. Why, their own. Q. How long was that after you had moved there? A. Why it wasn't very long. Q. What kind of chairs did you have in the room? A. Why, a couple for me. Q. Who took them out? A. I can't tell you. Q. Well, did you ever have any conversation with them about it, or either of them. A. No, sir; I don't know that we had any particular conversation. Q. Well, do you know when they took those chairs out? A. And put them up stairs; and I said to Jennie, what did you take the chairs out for? Well, Q. What did she say? A. I don't know what she said, whether she said anything; she was no ways talkative, nor I wasn't, when I had nothing to talk about; and so -- well, she set there -- it was after breakfast, I think, she set there -- now here's the important point, she set there with her elbow on the side of the chair or table, I can't tell you which, but this way, and I want you to understand, and she said to me, "I want you to understand that I am boss here," she said. Q. She said that she wanted you to understand that she was boss there? A. Well, I didn't say no; after a bit I repeated it to Laura Smith. Q. You told Laura about it? A. Yes, sir. Q. What did he say? A. Well, he spoke an ugly word. Q. Well, what was that? A. Well, I can't tell you. Q. What kind of a word? A. Well, kind of a swear; and here -- what was I going to say? I was going to say, I am getting forgetful. Well she repeated and said this, -- Laura didn't say, I don't think he did -- Q. Well, what was it? A. Well, she said that there was some wonderful thing going to happen here. Well, I said nothing. I didn't know what it was even, and just before this she had cut my shoe, and thinks I, the next thing will be my throat. I just thought of that and that's what started me to move. As God is my father and judge this is the truth. Q. Well, how was Jennie towards you, was she kind and considerate, did she treat you right? A. Well, she supposed so. She is an ignorant woman, and I suppose she done the best she could; I can't compare her to anything else. There is some people in this latter day professes to be intelligent, and yet they don't know their duty to an old person. Q. Well, how did Laura treat you while you were staying there with them? A. Well; only sometimes he would take a spurt in ugliness; have his bad words you know. He was just middling. He done the best, I suppose, he knew how. . . . Q. Well now, just state briefly why you left Laura and his wife? A. Why it was this here cutting of the shoe and the expression that she made. You know I said just a bit ago that she said that "there is going to be dreadful things here." Well, thinks I, what in the world -- she never explained things very fully, and when she said that, the shoe was cut, and I thought my throat would go next. I am as honest as eternity in that matter. . . ."

Other portions of the witness's testimony are referred to in the opinion of the Supreme Court.

At the close of the testimony, the defendant requested the court to charge the jury:

1. That the plaintiff has shown no facts which would justify Sarah E. Smith in rescinding the contract contained in her will, and therefore he cannot recover.

The court, EWING, P.J., did not answer the defendant's point specifically, but charged the jury in part as follows:

[The sole question for you to determine is whether or not Laura Smith performed his part of the agreement under that contract. If he did, he is entitled to hold that property as against the plaintiff in this action, or Sarah Smith, or anybody claiming under her. If he did not, if he failed substantially to perform that contract, then he is not entitled to hold possession of that property, and the plaintiff will be entitled to recover.

So you will understand, then, that your inquiry is directed to the ascertainment of the fact, whether or not the defendant in this action, Laura E. Smith, has substantially performed the contract implied and in part expressed in the paper dated October, 1884, and signed by Sarah Smith, by which she provides for giving him this property at her death, and the possession of it a few days later, at which time he did take possession.] His part of that contract seems to have been to take her with him and to care for and maintain her, and treat her kindly and considerately the rest of her natural life. That, he says he has done. She went with him when he took possession of this property, and selected her rooms in the house; they were...