Winpield v. Bowen

• Decision Date: 18 December 1903
• Parties: WINPIELD v. BOWEN et al.
• Court: New Jersey Court of Chancery

56 A. 728

65 N.J.E. 626

WINPIELD

v. BOWEN et al.

Court of Chancery of New Jersey.

Dec. 18, 1903.

Suit by Minnie Winfield against Bridget M. Bowen, individually and as administratrix of Simon Cosgrove, deceased, and others. Decree for complainant.

Chauncey G. Parker, for complainant.

Adrian Riker and L. M. Southworth, for defendants.

STEVENSON, V. C. The complainant files her bill against the administratrix and heirs of Simon Cosgrove, deceased, to recover compensation for services rendered and board furnished to him during his lifetime, by the specific performance of an agreement to devise a house and lot in Newark, or, in case compensation cannot be so secured, then by a decree for the value of the services and board in money. The defendants deny that deceased made any contract, and deny that the complainant furnished anything of value to the deceased for which she is entitled to compensation.

Simon Cosgrove died in January, 1899. His exact age was not proved, but was stated to be about 57 years, although there are indications that he was somewhat older. He was a friend, and probably nearly a contemporary, of the complainant's father, one Sofield, who was a pilot in New York Harbor, living at Elizabethport, N. J. Cosgrove was the captain of a tugboat, and appears to have been a frequent visitor in the Sofield family, at Elizabethport, which included the complainant. The complainant, then a young woman, was a school-teacher. She is evidently a woman of intelligence and fair education. Capt. Cosgrove, although probably efficient as a tugboat captain, was an illiterate man, as is shown by the numerous specimens of his handwriting. He was manifestly incapable of keeping an even fairly legible and correct set of books. His business required that he should do this thing to a very considerable extent. During the whole period with which we have to deal he had no interest in the tugboat which he commanded, but was in the employ of the person or persons who owned the boat. During the greater part of the time he was in the employ of a contractor, the late E. G. Brown, of Elizabethport, who owned dredges and similar appliances for construction work in our harbors. It was a part of Cosgrove's duty, as captain of the tugboat, and manager of the more or less extensive business done therewith, and necessarily for the most part done under his eye alone, to keep an account of all the work that his vessel did upon the various jobs in which from time to time it was employed, such as towing dredges, vessels, rafts, etc., and often also to fix the value of the different items of work accomplished by his boat. Mr. Rogers, the clerk and bookkeeper for years of Mr. E. G. Brown, was produced as a witness for the defendants. Mr. Rogers described the work which Capt. Cosgrove did, and showed that "he could not get along without keeping some books"; that he was obliged about once in two weeks to submit a written statement to the bookkeepers of his employers, exhibiting and classifying the work which his tug had done. This witness also showed that there was considerable business connected with the tug which involved the keeping an account by Capt. Cosgrove "of his labor items and board items, and coal, and things of that kind." It was natural that Capt. Cosgrove should seek the aid of some competent person to keep his books and make his reports. It was natural that he should go to the complainant for this work, as she was the daughter of his old friend. He knew her intimately, always addressing her by her first name. She was sufficiently well educated to be a teacher, and she testifies that she had taught bookkeeping. The necessity for this assistance appears to have arisen in the early 70's, when Capt. Cosgrove assumed the charge of Mr. Brown's boat. At that time (1872) the complainant, who had been married the year before to her present husband, was residing in small, but in apparently comfortable, quarters in Jersey City. Her husband was a fruit broker in New York. They kept no servant. Capt Cosgrove adopted the practice of coming to the Winfield home, in Jersey City, about once a week. He generally came Saturday night, and returned to his boat on Sunday night or Monday morning. According to the testimony of Mr. Winfield, he paid nothing for his board. There is no indication that either then, or at any time thereafter, while the relations of these people to each other lasted. Capt. Cosgrove ever paid anything, directly or indirectly, for his board and lodging. He maintained this habit of coming to the Winfield home about once a week, where a room was always kept for him, for 14 or 15 years, while the family lived part of the time in Jersey City, and part of the time in Newark. In the year 1887 or 1888, when the Winfields were established in Newark, and Capt. Cosgrove was obliged, from physical incapacity, to give up his employment, he established himself permanently with the Winfields, and resided with them continuously for about 5 years, until 1893. During this period he was supplied with board, lodging, washing, and mending, and during several illnesses was nursed by Mrs. Winfield Under the circum stances proved in this case, it would be very surprising if Capt. Cosgrove ever paid for these services and ministrations without leaving some evidence of the fact. There is no evidence of any such payment, and Mr. Winfield, who was the man of the house, and, in the absence of a special arrangement, would be entitled to receive the board money if the same was paid, swears positively that Capt. Cosgrove paid no board. Under the proofs in this case, the finding is inevitable that Capt. Cosgrove paid nothing for this large measure of support which he received from the Winfield family during a period of about 20 years. His position in the family undoubtedly was largely that of an intimate friend. He was a bachelor, having apparently no relatives residing near him. He was not only attached to Mrs. Winfield and her husband, but bore a tender affection for their only child. This child, a boy —Francis S.—was born in 1881, and received Capt. Cosgrove's name, Simon.

The evidence satisfies me that from 1872 until 1886 or 1887, when Capt. Cosgrove quit his active employment, the complainant, Mrs. Winfield, attended to his bookkeeping. When Capt. Cosgrove made his weekly visit to the Winfield home, he carried his illiterate scrawls in diaries and on slips of paper, some of which have been offered in evidence, and from these materials Mrs. Winfield made the proper entries in the necessary books. At regular intervals, also, Mrs. Winfield wrote out the reports which Capt. Cosgrove was obliged to hand in to the bookkeeper of his employer. Mrs. Winfield testifies that she wrote these reports on foolscap paper. Mr. Rogers, the bookkeeper of Mr. E. G. Brown, testified that, during the whole period of about 15 years during which this course of business was continued, Capt. Cosgrove banded in his reports on foolscap paper, written out, not by his own hand, but in handwriting which apparently was that of a woman, and was uniformly the same handwriting.

The evidence in this case, to my mind, compels the conclusion that Capt. Cosgrove not only received from this Winfield family, who were by no means in affluent circumstances, what amounted to eight or nine years of board, lodging, and personal care, but also received directly from Mrs. Winfield important and valuable assistance as a bookkeeper for a period of 14 years—services which he had to render as a part of his employment, for which he was paid, and which he was incapable of rendering personally in a satisfactory manner. The evidence also establishes to my satisfaction that Mrs. Winfield was never paid by Capt. Cosgrove, directly or indirectly, for any part of these services. No books of account, such as the testimony shows Capt. Cosgrove was obliged to keep, and in fact did keep, were produced in evidence. Young Mr. Winfield testifies that in 1893, five or six years after Capt. Cosgrove had given up active employment and consequently ceased keeping books, when he was about to remove from the home of the Winfields and establish himself in Elizabethport again, he burned these books in the back yard of the Winfield premises, together with other things which were no longer of any value, and with which, naturally, he would not wish to be incumbered.

The first question which presents itself for solution is whether all this labor was performed by Mrs. Winfield, and board and lodging for these many years were supplied by her or her husband, as a mere gratuity to Capt. Cosgrove, this old family friend, this bachelor, without expectation of compensation, or, if with the expectation of compensation, merely with the expectation that such compensation would be voluntarily made by Capt. Cosgrove, in the form of a gift by will or otherwise. Capt. Cosgrove apparently was not in the habit of making gifts, and supplied little or nothing of value in that form to the Winfield family. If the services were gratuitously rendered, they must have been, it seems to me, either purely out of good will, or under the inspiration of the hope of a substantial legacy in Capt. Cosgrove's will. Practically, the question in the case is whether the services were rendered under circumstances which gave the complainant a legal right to compensation, or whether the complainant was beguiled into rendering them in reliance on a legacy which might or might not be made.

In my opinion, the evidence in this case leads to the conclusion that what Capt. Cosgrove received from Mrs. Winfield was furnished under circumstances which entitled her, in law, to compensation, and not under circumstances which merely left her to the enjoyment of expectations from the testamentary action of Capt. Cosgrove, in respect of which it turned out she was bitterly disappointed.

The direct testimony in regard to the basis upon which the business relations...