Willis v. Willis

Decision Date01 October 1935
Docket Number1878
Citation48 Wyo. 403,49 P.2d 670
PartiesWILLIS v. WILLIS
CourtWyoming Supreme Court

APPEAL from the District Court, Sweetwater County, V. J. TIDBALL Judge.

Action by Ethel Willis against Isaiah Willis. From an unsatisfactory judgment, plaintiff appeals.

Affirmed.

For the appellant, there was a brief by Armstrong and Armstrong, of Rawlins, and oral argument by L. E. Armstrong.

The court erred in striking portions of plaintiff's reply pleading res adjudicata and estoppel. 34 C. J. 749, 874, 902 921; Sec. 89-1024, R. S.; Holgate v. Downer, 8 Wyo 334; Bates v. Clark, 95 U.S. 204; Harrison v Birrell, (Ore.) 115 P. 141; Metcalf Company v. Gilbert, (Wyo.) 116 P. 1017; Richards v. Company, (Ore.) 228 P. 937. A judgment on the merits is conclusive as to every matter offered and received to sustain or defeat a demand. In re Sanford Ross, (C. C. A.) 204 F. 248 and cases cited. Defendant prevailed in the divorce case upon a theory conflicting with his position in the present case, and is therefore estopped to assume a contrary position. Davis v. Wakelee, 156 U.S. 680; Altman v. Schuneman, 39 Wyo. 414; Hatten Company v. Baylies, 42 Wyo. 69. Matter should not be stricken from a pleading on grounds of redundancy or irrelevancy, unless these defects are clearly apparent. 49 C. J. 720 and cases cited. Bank v. West, (Kan.) 278 P. 729; Turk v. Page, (Okla.) 174 P. 1081. The court erred in striking the word "affirmative" where it appeared in several paragraphs of plaintiff's amended reply. 1 Bancroft's Code Pleading, 618; Ollason v. Glasscock, (Ariz.) 224 P. 284; Hancock v. Luke, (Utah) 148 P. 452. A reply is necessary under statutes such as Wyoming. Wade v. Miller, (N. Y.) 59 N.E. 825. The court erred in sustaining a demurrer to paragraph 10 of plaintiff's amended reply. Sec. 89-1011, R. S.; 49 C. J. 407; World v. Haller, (Ind.) 66 N.E. 186. Cohabitation was made an issue in the divorce case, and was essential to establish a common law marriage. 38 C. J. 1316. Lorimer v. Lorimer, (Mich.) 83 N.W. 609. The following cases are cited on estoppel. Bast v. Bast, (Mont.) 217 P. 345; Macan v. Company, (Pa.) 107 A. 750; Short v. Short, (Calif.) 288 P. 1111; Peterson v. Strayer, (Nebr.) 237 N.W. 667; Linz v. County, (Texas) 39 S.W.2d 599; Insurance Company v. Stewart, (Ind.) 129 N.E. 853; Hassberger v. Supply Company, (Mich.) 182 N.W. 27. On the question of cohabitation we cite: Weidenhoft v. Primm, 16 Wyo. 340; Richey v. State, (Ind.) 87 N.E. 1032; Van Dolsen v. State, (Ind. App.) 27 N.E. 440; Jackson v. State, (Ind.) 19 N.E. 330; State v. Walker, (Kans.) 13 P. 279. The first cause of action seeks to recover compensation for services performed by the plaintiff for the defendant, and services were admitted in defendant's answer and are binding upon him. 49 C. J. 122; Pardee v. Kuster, 15 Wyo. 368; Nugent v. Powell, 4 Wyo. 173; Jones v. Morehead, 1 Wall. 155; Burke v. Company, (Ohio) 118 N.E. 111; Agnew v. Agnew, (Colo.) 185 P. 259. Defendant also pleaded payment for such services, which constitutes an admission that the services were performed. Rohman v. Gaiser, (Nebr.) 73 N.W. 923; 48 C. J. 675; Greenless v. Chezik, (Colo.) 190 P. 667; Livestock Company v. George, 45 Wyo. 254. Payment is an acknowledgment of the existence of debt. Meitzler v. Todd, (Ind.) 39 N.E. 1046; Smith v. Smith, (Wyo.) 270 P. 174. There is no dispute in the evidence as to the value of the services, shown to have been household, care of children and in the cabaret. The value of the services was not disputed by defendant. 22 C. J. 1111; Bonelli v. Burton, (Ore.) 123 P. 37. A plea of payment presents a good defense in an action on account; but such a plea admits the correctness of the account. 1 C. J. 658; Barlas v. Catechis, (Okla.) 263 P. 647. Defendant admitted nonpayment of services. Alleged gifts could not discharge his liability for services. Smith v. Smith, 39 Wyoming 137; 28 C. J. 620. It is well settled that in the absence of an express agreement, an employee may sue as on a quantum meruit. Button v. Higgins, (Colo.) 38 P. 390; Metcalf v. Gilbert, 19 Wyo. 331; Hecht v. Stanton, 6 Wyo. 84; Nastrom v. Sederlin, 43 Wyo. 330. Uncontradicted evidence should ordinarily be taken as true, with certain exceptions supported by authorities. 23 C. J. 47; Gruett v. Dibble, (Mich.) 86 N.W. 120; Gibbons v. Ry. Co., (Nebr.) 154 N.W. 226; Mullen v. Company, (N. Y.) 87 N.E. 1078. A party having the means of rebutting and explaining the evidence against him, but failing to do so, creates an inference that it is against him. Cram v. Reynolds, (Utah) 186 P. 100; Hines v. Sweeney, 28 Wyo. 57. Defendant having admitted that plaintiff was his servant, admitted a contract of employment. Palmer v. Oil Company, (Okla.) 263 P. 440. Defendant did not attempt to prove an illegality in the contract by improper relationship. 13 C. J. 461; Stewart v. Waterman, (Vt.) 123 A. 524; Emerson v. Botkin, (Okla.) 109 P. 531; Armstrong v. Bank, 133 U.S. 433; Rhodes v. Stone, 17 N.Y.S. 561. The contract was not affected by any later agreement. 13 C. J. 597; McCurdy v. Dillon, (Mich.) 98 N.W. 746; 4 C. J. 578; 20 R. C. L. 368; Hood v. Smiley, 5 Wyo. 70. Recovery is sought on an implied contract. Hay v. Peterson, 6 Wyo. 419; Company v. Yarnell, 31 Wyo. 120; In re Walton's Estate, (Iowa) 238 N.W. 577; Salisbury v. Frank, 7 Ohio App. 454; 2 Page on Contracts, 1173. Burden is on party accepting service to prove that they were gratuitous, in absence of family relation. Wharton v. Denny, (Mo.) 296 S.W. 183; Dey v. Quinn, (Ariz.) 187 P. 578. The rule that one cannot recover for services incidental to a improper relation, does not prevent recovery on an implied contract for other services. 40 Cyc. 2823; Sackstaeder v. Kast, (Ky.) 105 S.W. 435; Loughran v. Loughran, (U.S.) 78 L.Ed. 798; 28 R. C. L. 684. And this is especially true when the woman acts in good faith. Cooper v. Cooper, (Mass.) 17 N.E. 892; Cropsey v. Sweeney, (N. Y.) 31 A. L. R. 426; In re Fox's Estate, (Wis.) 190 N.W. 90; Sanders v. Ragan, (N. C.) 90 S.E. 777. The plaintiff in this case acted in good faith. The presumption is that the plaintiff acted in good faith. 22 C. J. 144; Williams v. Wilson, (Ala.) 97 So. 911; Coad v. Coad, (Nebr.) 127 N.W. 455; Bank v. Ford, 30 Wyo. 110; McInturff v. Insurance Company, (Ill.) 93 N.E. 369; 38 C. J. 1296; Smith v. Fuller, (Iowa) 108 N.W. 765. The burden of proof is on one assailing a marriage. Wilcox v. Wilcox, (Calif.) 155 P. 95; Madison v. Steckelberg, (Okla.) 224 P. 961. A common law marriage where recognized is as valid as any other marriage. Keezer, Marriage & Divorce (2d) Ed. p. 92, Sec. 74; Hunter v. Hunter, (Cal.) 43 P. 756. Evidence showing a common-law marriage is not overcome by a subsequent ceremonial marriage. Shank v. Wilson, (Mich.) 74 P. 812; Simmons v. Simmons, (Texas) 39 S.W. 639. The finding of the trial court was general and included a finding of all the facts necessary to sustain the judgment. Hinton v. Saul, 37 Wyo. 78. Plaintiff's petition alleges that the money was advanced in the payment of household expenses. Money advanced for the purpose of enabling parties to live in an immoral relation cannot be recovered. 13 C. J. 460, 518. A finding in good faith on the part of plaintiff being necessary to sustain the judgment on the second cause of action, it follows that there must be a finding of good faith where the first cause of action is involved, since the court could not make contradictory findings on the same facts. 64 C. J. 1249; 26 R. C. L. 1093. Compensation for services may be recovered even though the expected compensation was not in the form of wages. Welch v. Gunn, (Cal. App.) 281 P. 704; Spicer v. Spicer, (Iowa) 202 N.W. 604. Compensation for services may be recovered on a quantum meruit basis. Therrien v. Le Blanc, (Mass.) 185 N.E. 15; 13 C. J. 244. In Iowa, where a marriage was denied, the court held that it did not preclude the plaintiff from recovering on a claim for compensation for services, after it had been established that there was no marriage relation. Asher v. Pegg, (Iowa) 123 N.W. 739. This is not a case where there is substantial evidence to support the findings necessary to sustain the judgment, hence the rule that the findings of the trial court will not be disturbed, if supported by substantial evidence, does not apply. 4 C. J. 882. The services were performed by plaintiff and she has not been compensated. There is no evidence that the services were gratuitous, nor evidence to support a finding of lack of good faith. There is no evidence to support a judgment for defendant in the first cause of action, and as it appears evident that the judgment for the defendant was due to an error of law, this court should reverse the judgment below, and enter judgment for plaintiff, or remand the case to the district court, with directions to enter judgment for the plaintiff, for the full amount prayed for, as provided in Section 89-4819 of the Wyoming Revised Statutes.

For the respondent, there was a brief and an oral argument by T. S. Taliaferro, Jr., of Rock Springs.

We deem it unnecessary to impose upon the time of the court in reviewing appellant's brief. The issue in this case is simple. The parties are colored people who lived and conducted their business in a restricted district in the town of Green River, Wyoming. This court has a right to understand a situation which the trial court well understood, even though it does not appear from the evidence. It appears from the record that Ethel Willis took up her abode with defendant when she was a married woman, having lived with a man named Crawford, who was not her husband, and that she sought refuge from Crawford in the home of Isaiah Willis. She testified at the trial that her claim of a common-law marriage was purposely kept...

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