Zuhn v. Horst

• Decision Date: 21 February 1918
• Docket Number: 14215.
• Citation: 170 P. 1033,100 Wash. 359
• Court: Washington Supreme Court
• Parties: ZUHN v. HORST.

170 P. 1033

100 Wash. 359

ZUHN v. HORST.

No. 14215.

Supreme Court of Washington

February 21, 1918

Department 2. Appeal from Superior Court, Whatcom County; Augustus Brawley, Judge.

Action by Sophia Zuhn against C. A. Horst, as administrator of the estate of William Neihoff. From a judgment for plaintiff defendant appeals. Reversed and remanded, with instructions to dismiss.

W. J. Griswold and Hurlbut & Neal, all of Bellingham, for appellant.

Kellogg & Thompson, of Bellingham, for respondent.

MORRIS J.

Respondent mother of the deceased wife of William Neihoff, deceased brought this action against the administrator of William Neihoff's estate to recover the value of household services rendered the deceased and his family prior to the death of the deceased and his wife. In her complaint, she alleged that the services were rendered at Danville, Ill between August, 1898, and December 24, 1905, and were of the reasonable value of $60 per month; that the consideration for such services was an oral promise made by William Neihoff in August, 1898, that he and his wife would provide respondent with a home and suitable support during her life. She further alleged that shortly after December 24, 1905, the Neihoffs removed to Bellingham, Wash., and that William Neihoff, prior to his departure from Danville, orally promised that he and his wife would make and execute wills and make respondent their beneficiary and heir. Mrs. Neihoff died intestate at Bellingham, in October, 1906. William Neihoff died intestate at Bellingham, in April, 1915. Respondent filed a claim with the administrator for 'services as nurse and housekeeper from August, 1898, to December, 1905, both inclusive, at the rate of $60 per month, amounting to $5,340.' The only evidence in support of the agreement for compensation, claimed to have been made in August, 1898, at the beginning of the services, was that of Mrs. Emma Schultz, a daughter of respondent, who testified as follows: 'He [Mr. Neihoff] told me he had made arrangements with mother to stay there as long as mother lived; that mother was to do the work there and that was going to be her home, and he was going to give her a good home and provide for her; and Mrs. Neihoff said that was what mother wanted. That was what she wanted, and she was going to stay there and help them, and for this help they were going to give her a good home as long as she lived, and their home was to be her home.'

Mrs. Schultz also testified to the second promise made at Danville, Ill., as follows:

'I said to him, 'Supposing you both die, what are you going to do then?' and he said, 'We have made that all out; Minnie and I have talked about it, and we are going to make a will before we go away, and we are going to have that all fixed up before we go, and if we both die mother will be well taken care of.''

During the examination of Mrs. Schultz at the trial, she testified that she visited William Neihoff at Bellingham in August, 1909. That, during this visit, she had a number of conversations with him relative to his making some provision for a settlement of respondent's claim. That William Neihoff then said to her:

"I am awfully sick now; the doctor has given me up and I cannot live long. The doctor says I cannot live longer than three months, and I don't want to go to the trouble of borrowing money, and we must make some other arrangement with mother. I know I owe her a great deal; I know she helped me a great deal, and I know I owe her a great deal,' And then he said the next time we were together, he said--and talked over what he was going to do about mother--and he said, 'I will tell you what I am going to do;' he said, 'I am going to make a will, if that will suit your mother; I am going to make a will and in that will I will provide for mother. Now, mother can have everything there is I have after I am dead and gone.' He said, 'When you go back you ask your mother if she will be satisfied with me making a will and leaving everything that is left to her. Tell her I am sick and I do not want to trouble about getting money. I may not live long. You tell your mother, and write to me when you get back if she is satisfied with that."

That, on her return to Illinois, she told her mother what Neihoff had said relative to making her mother a beneficiary in his will, and that her mother expressed satisfaction with the offer and she so notified Neihoff. With this testimony in the record, counsel for respondent, at the close of his case in chief, moved to amend the complaint 'to conform to the proof to show the promise and agreement was made in Bellingham for the making of the will.' This amendment was allowed. Appellant then challenged the sufficiency of the evidence and interposed the bar of the statutes of frauds and of limitations; all of which being denied, the trial proceeded, resulting in a verdict and judgment for respondent.

We will first dispose of a motion to dismiss the appeal, made on the ground of failure to serve the sureties upon respondent's cost bond--she being a nonresident--with notice of the appeal. Appellant has filed in this court a waiver of any claim against the surety and has stipulated that the cost bond be canceled. With such a record, the motion is ruled by Roberts v. P. Tel. & Tel. Co., 93 Wash. 233, 160 P. 753, and is denied.

Under the relationship existing between respondent and the Neihoffs, the rendition of services of the character here disclosed implies no contract for compensation. The law presumes that, as between persons so related, the service was a gratuity, and, before any recovery can be had, there must be proof either of an express contract, or of facts and circumstances from which a contract for compensation may be implied. Morrissey v. Faucett, 28 Wash. 52, 68 P. 352; McBride v. McGinley, 31 Wash. 573, 72 P. 105; Hodge v. Hodge, 47 Wash. 196, 91 P. 764, 11 L. R. A. (N. S.) 873; Elliott on Contracts, § 240.

Realizing such to be the law, respondent sought to meet it, first, by the testimony of Mrs. Schultz as to the promise made by the deceased at Danville, Ill., in August, 1898. That this was the theory of the cause of action prior to the amendment of the complaint is further evidenced by the claim submitted to the administrator, in order to meet the mandatory requirement of our statute, that no holder of any claim against the estate of a deceased person shall maintain an action thereon unless the claim shall have been first presented to the executor or administrator. The claim filed by respondent is as follows:

'Exhibit A.

'In the Superior Court of the State of Washington in and for Whatcom County. In Probate.

' In the Matter of the Estate of William Neihoff Deceased. No. 2889. Claim of Sophia Zuhn.

William Neihoff, deceased, debtor, to Sophia Zuhn, for seven years and five months services as nurse and housekeeper from August, 1898, to December, 1905, both inclusive, at the rate of $60 per month, amounting to $5,340

'The above mentioned and described services were performed by claimant for said William Neihoff and family under the express promise and agreement of said William Neihoff to provide for and support claimant and furnish her a home during the remainder of her life; that at the time the performance of said services ceased as above set forth said William Neihoff orally promised and agreed that in consideration of said services so performed he would make and execute his last will and testament and would name claimant in said last will and testament as his

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