Uhler v. Harbaugh

• Decision Date: 25 March 1924
• Citation: 110 Or. 609,224 P. 89
• Parties: UHLER v. HARBAUGH (CLOW ET AL., INTERVENERS.
• Court: Oregon Supreme Court

224 P. 89

110 Or. 609

UHLER v. HARBAUGH (CLOW ET AL., INTERVENERS.

Supreme Court of Oregon

March 25, 1924

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by John Uhler against J. J. Harbaugh, as administrator with the will annexed of the estate of C. H. Kentner, deceased, in which Dora M. Clow and others intervened. Judgment for plaintiff, and, from an order granting a new trial, he appeals. Affirmed.

This is an action brought by plaintiff against J. J. Harbaugh, as administrator with the will annexed of the estate of C. H Kentner, deceased, as defendant, in which Dora M. Clow Bessie K. Koeneman, and Edwin C. Carnal, heirs of C. H Kentner, deceased, intervene.

The complaint set forth: That C. H. Kentner died in Iowa about November 11, 1905, owning certain real property in Lane county, Or. That thereafter, on June 11, 1921, Harbaugh was appointed by the county court of Lane county as administrator with the will annexed of the estate of Kentner. That shortly prior to the death of Kentner plaintiff and Kentner entered into an agreement whereby it was mutually agreed and promised by Kentner that if plaintiff would promise to stay with, care for, and nurse Jennie Kentner, the aged wife of Kentner plaintiff would be paid therefor out of Kentner's estate. That plaintiff accepted such employment, and in consideration of said promise by C. H. Kentner plaintiff mutually promised and agreed so to stay with, care for, and nurse the said wife of Kentner, and shortly after the death of said C. H. Kentner plaintiff and said Jennie Kentner removed to Oregon and took up their residence upon the land of said Kentner in Lane county, where said parties resided until the death of said Jennie Kentner, on or about December 27, 1920. That under and pursuant to said agreement and promise, and in fulfillment thereof, and in reliance upon the promise of C. H. Kentner plaintiff did, on and between said dates, live with, care for, and nurse said Jennie Kentner, and in that behalf assisted her in removing to Oregon; purchased what she desired and needed from time to time; assisted in erecting and improving buildings upon said land; cared for her live stock; did all chores upon the premises; cultivated and cropped the same each year; did most of the housework and cooking; prepared most of the meals, and performed numerous other things and duties in and about the premises and home, and waited upon and cared for Jennie Kentner at all times during said period and nursed her through all illnesses, including her last illness; and did in all respects and in good faith fully and wholly carry out and perform the agreement upon his part. That the reasonable value of said services is and was the sum of $150 per year, and that there is reasonably due and owing plaintiff for such services during said time the sum of $2,269.16, no part whereof has been paid. Then followed an allegation that plaintiff had duly presented his claim to the administrator and that it had been rejected.

The material allegations of the complaint were denied by the interveners, and the case went to trial, whereupon the jury returned a verdict in favor of the plaintiff in the sum of $1,200. A motion for a new trial, upon various grounds, was filed and was allowed by the court upon the ground that there was not evidence in the case sufficient to go to the jury corroborating the testimony of the plaintiff, as provided by section 1241, Oregon Laws; from which order granting a new trial plaintiff has appealed.

The testimony upon which plaintiff relied was his own testimony, which is as follows:

"Q. Did you have a talk with Mr. Kentner, before he died, with reference to his wife--taking care of her? A. Mr. Kentner told me that--

"Q. Tell the jury just what he said to you about that--what Mr. Kentner said. A. Mr. Kentner told me, before he died, about two months, I would get something.

"Q. What for? A. For looking after her.

"Q. Did he ask you whether or not you would look after his wife after he died? (Objected to as leading. Objection sustained.)

"Q. What, if anything, did Mr. Kentner tell you or ask you about looking after his wife? A. He told me to look after her as long as she lived, and I would get something.

"Q. What, if anything, did you say to that? A. I told him, 'I will.' "

Frank Stewart's deposition, read in behalf of plaintiff, was, in part, as follows:

"Did you ever have any conversation with C. H. Kentner in reference to Uhler's working for or staying with Kentner, or his wife, or both? If so, state when they were, where they were, who was present, and what the conversations were as nearly as you can recall, being careful to state each conversation as if you were repeating exactly what Kentner stated in his own language, and not merely your interpretation of the conversation, and use the first person instead of the third.

"Answer: Kentner stated to me, 'I want John (meaning Uhler) to stay and care for my wife and myself as long as we live.'

"Question: State any conversation, if any you had, with C. H. Kentner, concerning Uhler's staying with or caring for Jennie Kentner, wife of C. H. Kentner, after Kentner's death, giving time, place, persons present, as nearly as you can recall, and observing the caution given in Interrogatory No. 11.

"Answer: During the last year of his life at Whitten, Iowa, Mr. Kentner was planning on moving to Oregon, and during this time he stated, 'I want John to go with Jennie and myself and care for us the rest of our lives.'

"Question: If C. H. Kentner ever gave you, or if you ever heard him give any other person, any reason or purpose in buying his land in Lane county, Or., state what was said, when, where, and with whom, observing the caution given in interrogatory No. 11.

"Answer: 'I bought this land for a home for Jennie because it is located near her daughters.'

"Question: Give any further information you have, if any, concerning the matter of John Uhler accompanying Jennie Kentner, widow of C. H. Kentner, to Oregon.

"Answer: John Uhler accompanied Jennie Kentner to Oregon for the purpose of caring for the farm, live stock, and also Mrs. Kentner."

It was further shown: That the plaintiff and the wife of the deceased remained in Iowa for about a year after the death of Kentner, when Kentner's wife, Jennie Kentner, removed to the land owned by the deceased in Lane county, in which, by will, she was granted a life estate, with reversion to Kentner's heirs. That she was accompanied by the plaintiff, who lived upon the land with her and took care of her until she died in December, 1920. That he did most of the housework, labored diligently in assisting to earn money for her support, and performed all the duties that an affectionate friend would have performed under the same circumstances. That he had lived with Kentner and his wife for several years before he came to Oregon and was paid by Kentner at the rate of $10 per month for his services. This was practically the effect of all the testimony produced on behalf of plaintiff.

Fred E. Smith, of Eugene, for appellant.

H. E. Slattery, of Eugene, for respondent ad...