Hay v. Peterson

• Citation: 6 Wyo. 419,45 P. 1073
• Parties: HAY, EXECUTOR, ETC., v. PETERSON
• Decision Date: 01 August 1896
• Court: United States State Supreme Court of Wyoming

45 P. 1073

6 Wyo. 419

HAY, EXECUTOR, ETC., v. PETERSON

Supreme Court of Wyoming

August 1, 1896

Commenced in District Court November 11, 1893.

ERROR to the District Court for Laramie County, HON. RICHARD H SCOTT, Judge.

Severin Peterson brought this action against Henry G. Hay as executor of the last will and testament of Charles G. Strom deceased to recover a sum of money alleged to be due and unpaid for services rendered to the decedent for a continuous period exceeding fourteen years, except seven weeks in 1892 and five weeks in 1893, when he was sick and cared for at the county hospital. The issues raised by the pleadings are stated in the opinion.

The defense claimed that there was no previous contract between Peterson and Strom, and the services were rendered by the former gratuitously in return for his maintenance by Strom. Peterson did not testify, being incompetent under the statute, as the adverse party was the executor of a deceased person. The testimony in his behalf, in the first instance was to the effect that Strom had explained to other persons who were produced as witnesses, that he would pay Peterson well, as one witness says, and, in the language of another that "He told me what he was paying him, what he promised to pay; it was thirty dollars a month, and that he hadn't paid him any, only given him a quarter once in a while to get shaved, and that he intended to settle up with him at some future time; that he did not think Peterson was capable of taking care of the money." On cross-examination this statement was somewhat modified so as to omit the idea of a promise made to Peterson as a positive recollection of the witness. These statements of Strom to the witness were made, as testified, on several occasions, from 1886 to 1889.

The testimony on this point on behalf of the defense was that Peterson lived with Strom, ate and slept at his place, and that Strom furnished him his clothing, small amounts of money from time to time for personal necessities, and tended to show that Strom treated him as one of the family, although not always gently or kindly, at least, in the presence of others; that Peterson worked at Strom's place, doing anything required of him, and as a sort of personal servant.

At defendant's request the court gave the following instruction which was conceded to correctly state the law:

"The jury are instructed as matter of law that generally it is the law that if one person works for another at his request, a contract to pay what such services are reasonably worth is implied; but if the person performing such service lives in and is one of the family of the other for whom the services are performed, being provided with food, clothing, lodging and care as one of the family, and doing labor and work for such other person, and as a matter of fact there is no contract between them relating to, or providing for, any compensation to be paid for such work and labor, then no action can be maintained therefor. In such a case as this, however, where the parties are not related to each other, a contract will be implied by law, unless the contrary is shown either express or to be implied from all the circumstances of the case. You are therefore instructed that if you shall find as a fact from all the evidence in the case there was not in fact any contract express or implied entered into between the plaintiff and the deceased C. G. Strom, relating to the payment for the work and labor performed for the deceased by the plaintiff; and if you shall further find that the plaintiff during the time included in his claim, lived in and was one of the family of the deceased C. G. Strom, being provided with food, clothing, lodging, and care as one of the family, then the plaintiff can not recover, and your verdict should be for the defendant."

It was claimed by counsel for the plaintiff in error, (defendant below) that this instruction was disregarded by the jury. The jury were also instructed that if they believed the plaintiff entitled to recover, the amount should be limited to the reasonable value of his services over and above the value of his board and lodging, and such clothing and care as were furnished him by the deceased, and over and above all payments made to plaintiff by the deceased.

On the first trial a verdict was returned for the plaintiff, but a new trial was granted by reason of the discovery of new evidence; viz., a certain account book of the deceased, showing payments to the plaintiff during the years 1886, 1887, and 1888, and a calendar containing certain entries in the handwriting of the deceased.

A new trial resulted in a verdict for plaintiff, and after the filing of a remittitur for a portion of the amount, judgment was rendered on the verdict and the defendant prosecuted error. The remaining facts and instructions so far as material to the points decided are stated in the opinion.

Judgment affirmed.

Burke & Fowler, for plaintiff in error.

The court below adopted the correct doctrine respecting the right of one performing work for another while a member of his family to recover compensation therefor. (Wyley v. Bull, 41 Kan. 206; Windland v. Deeds, 44 Iowa 98; Smith v. Johnson, 45 Iowa 308; Ryan v. Lynch, 9 Mo. App., 18; Mountain v. Fisher, 22 Wis. 93; Cooper v. Cooper, 17 N.E. 892; 26 Cent. L. Jour., 51-53; 2 Pars. Cont., 47; Ellis v. Carey, 42 N.W. 253; Shayne v. Smith, 37 Kan. 55; Knight v. Knight, 33 N.E. 460.)

The action, as to all of the claim for work done prior to eight years preceding the death of Strom, was barred by the statute of limitations. (R. S., 1887, Sec. 2370, L. 1891, p. 319; Courson's Ex'rs v. Courson, 19 O. St., 454; Dempsey v. McNally, 73 Md. 438; Estes v. H. B. Shoe Co., 54 Mo. App., 543; Schoch v. Garrett, 69 Pa. 144; Davis v. Gorton, 16 N.Y. 255; Grady v. Wilson, 115 N.C. 344.) The claim sued on is not a mutual account, and it is only when such is the case, or an express contract is proven, that a recovery can be had for items ante-dating the time limit named in the statute. (Fitzpatrick v. Henry, 58 Wis. 250; Angell on Lim., 148, 149; Wood on Lim., 278; Crumb v. Hegold, 32 Ill.App. 282; Dunn v. Howard, 73 Wis. 545; Sullivan v. Lattner, 38 S. C., 158; Mim's Ex'rs v. Sturtevant, 18 Ala. 360; Wood, 141; Catton v. Tolley, 22 Kan. 472; Seibert v. Baxter, 36 Kan. 189; Williams v. Griffiths, 2 C. M. and R., 45.) Admissions of payment, or that there is nothing due, like a receipt, are prima facie evidence of payment. (1 Greenleaf Ev., Secs. 169-204; id., Sec. 300; Robinson v. Dugan, 35 P. 902; 1 Rice's Ev., 468; Gibney v. Merchay, 34 N.Y. 301; Causer v. Paul, 41 N.H. 24; Saveland v. Greene, 40 Wis. 431; 1 Best on Ev., 406.) The books of account of the deceased having been destroyed by plaintiff, a presumption arose that had the truth appeared by them it would have been against his interest. (1 Greenleaf Ev., 37; 3 id., 34, 408, 453; Hauser v. Austin, 10 P. 37; 1 Phil. Ev., 639 star page; The Sam Sloan, 65 F. 125; State v. Neals, 42 Kan. 54, 120; State v. Fulton, id., 164; 1 Rice's Ev., 56; 19 Ency. L., 71, n., 2.)

The payment of wages during three years, 1886-1888, establishes the presumption that all previous wages had been paid. (2 Best on Ev., 406; Rice Ev., 56.) It is a presumption of law in cases of running accounts for interest, taxes and rent, and the like, that there has been payment, after the lapse of a reasonable period, as from their nature common prudence and foresight would provide for them. (1 Rice Ev., 70; Decker v. Livingston, 15 Johns, 479; Crompton v. Pratt, 105 Mass. 255; Hogdon v. Wright, 36 Me. 326; Brewer v. Knapp, 1 Pick. 332; Attleboro v. Middleboro, 10 id., 378; Robinson v. Townsend, 20 id., 345.) The calendar with its entries of payments to the plaintiff in the handwriting of the deceased was admissible. (2 Rice Ev., 329; 1 Greenleaf Ev., 118; Kendall v. Field, 14 Me. 30; Hooper v. Taylor, 39 id., 229; Augusta v. Windsor, 19 id., 317; Nichols v. Webb, 8 Wheat., 326; Beaver v. Taylor, 1 Wall., 469; Welsh v. Barrett, 15 Mass. 381; Pratt v. White, 132 id., 478; Rice v. Hodge, 26 Kan. 164; Smith v. Law, 47 Conn. 413; Ingram v. Bockins, 9 S. & R., 285; Smith v. Sandford, 12 Pick. 138; Hill v. Scott, 12 Pa. 168; Hoover v. Geer, 62 id., 138; Gale v. Morris, 2 McLean, 472.)

Ralph E. Esteb, for defendant in error.

No part of the claim of plaintiff was barred by the statute of limitations. (Jackson v. Mull, 42 P. 603; Smith v. Velie, 60 N.Y. 106; Gilbert v. Comstock, 93 id., 484; Denise v. Denise, 110 id., 562; Pursell v. Fry, 58 How. Pr., 319.) Accounts for services where payments are made from time to time on account are deemed mutual and open accounts. (Wood on Lim., 278; Angell on Lim., 141; Carter v. Carter, 36 Mich. 207; Payne v. Walker, 26 id., 59; Kimball v Kimball, 16 id., 211; Robie v. Briggs, 59 Vt. 443; 31 Mo. App., 180.) Where payments are made the law does not presume past services paid for in full. (Wood on Lim., 110; Crompton v. Pratt, 105 Mass. 255; Pursell v. Fry, supra, Smith v. Velie, Denise v. Denise, Gilbert v. Comstock, supra; In re Gardner, 103 N.Y. 233.) The services were continuous, and the cause of action did not accrue until the services were ended. (Taggart v. Tevanny, 27 N.E. 511; Story v. Story, id., 573; Littler v. Smiley, 9 Ind. 116; Carter v. Carter, 36 Mich. 207.) The weight to be given to evidence of mere admissions is to be determined by the jury. (Saveland v. Green, 40 Wis. 444.) There must have existed a fraudulent design in the destruction of books of account of deceased to have made plaintiff subject to the presumption that their contents would be against his interest. (1 Phil. on Ev., 639; Blade v. Nolend, 12 Wend. 174.) The calendar was not admissible. It was not a book of accounts. (Law v....