181 Mich. 153 | Mich. | 1914
The claimant filed a claim in the probate court of Ottawa county which was as follows:
“Estate of Jannetje De Spelder, Deceased,
“To Jeannette Bolthouse, Dr.
“For washing, care and nursing of the deceased Jannetje De Spelder and her husband, Jacobus De Spelder at request of Jannetje De Spelder, from May 1, 1903, to day of death of Jannetje De Spelder, June 17, 1912, at $4.00 per week, nine years, $1,862.00.”
The claim was disallowed by the probate court, and an appeal taken to the circuit court for the county of Ottawa. The case was there tried before a jury and resulted in a verdict for the claimant in the sum of $1,600, and costs of suit.
The parents of claimant had been much in the employ of Mrs. De Spelder and family before the birth of claimant. During the first 15 years of claimant’s life, she was much of the time in the De Spelder family, and she remained with that family, more or less of the time, until she finished the eighth grade in the public schools. It seems to be undisputed that from the time the claimant was 15 years of age until she was married she remained with Mrs. De Spelder in service, which was consented to by the father of
“Q. Do you recollect any conversation between your wife and Mrs. De Spelder with reference to her working there after you moved back here?
“A. Yes, we were here something like a week or' two weeks; it was in the evening.
“Q. What was the conversation that you heard?
“A. They were in the kitchen, and I was in the dining room. I heard them talking about it. Now she says, ‘Jennie, you are back here, and I am glad you are back.’ She says. ‘Now if you stay with me I will make it good with you in my will.’ Now, she says: ‘Don’t worry, Mrs. De Spelder, I will never leave you under no condition.’ She says, ‘If my husband does want me to go away, I won’t go, because I will promise you I will stick to it.’
“Q. Did you consent to her arranging there and working under that arrangement?
“A. Not that minute, but when we got into our
On cross-examination the following occurred:
“Q. You say that you had some talk with your wife and Mrs. De Spelder about— what about, after you came from Grand Rapids?
“A. I did not talk with the both of them.
“Q. You heard a conversation between the two?
“A. Yes.
“Q. Then you had a talk with your wife after that ?
“A. Yes.
“Q. Where was this talk?
‘‘A. In our kitchen. No one was present when my wife and I had this talk. We were alone. I told her whatever arrangement she made with her was all right, after she told me what she talked about, I said, T heard it,’ and, Tt is all right.’ I says: ‘Everything you get out of it is yours. I won’t stop you.’ I did not have any further talk with Mrs. De Spelder about this. Mrs. De Spelder knew I would allow my wife to stay there then. I told her I would let my wife stay. I don’t remember when, but I told her we would both stay. She did not ask to have me stay. I was not in the deal at all.- I was paying rent.”
A witness, Katie Pals, was permitted to testify upon the subject of the value of the services of the claimant during the nine years that it was claimed she was in the employ of Mrs. De Spelder. This woman was a neighbor *who, during this period of time, was frequently in the De Spelder home, her visits varying from a number of times a week to less frequent occasions, during which time she had divers conversations with Mrs. De Spelder and observed the claimant in her work and duties there in the care of the household. It is the contention of appellant that she did not show herself sufficiently acquainted with the services performed by the claimant to be able to testify upon the subject.
Error was also assigned upon the ruling of the court in excluding some testimony offered by the executrix of the estate relative to her conversations with Mrs. De Spelder, after her husband’s death, with reference to claimant. These conversations were objected to by claimant’s counsel as incompetent and improper. The proposed testimony seems to have
By appropriate assignments of error, counsel for appellant have discussed the questions involved under the following heads:
(1) Errors relating to the admission in evidence of testimony by the husband of claimant as to the conversation he overheard between claimant and decedent with reference to services; he at the time not having assigned to claimant the right to recover for her own services.
(2) Errors relating to the admission in evidence of testimony of services rendered by claimant at the Dé Spelder home prior to the death of Jacobus De Spelder, husband of decedent.
(8) Errors connected with the admission in evidence of the inventory of decedent’s estate and of the will and inventory of her husband’s estate.
(4) Error in admitting improper evidence of the witness Katie Pals of the value of claimant’s services.
(5) Error in rejecting testimony of the executrix as to conversations with decedent as to the relations between decedent and claimant, and with reference to decedent’s physical condition.
(6) Error in the incomplete and ambiguous charge of the court with reference to what the alleged contract claimed by claimant was.
We have examined these cases, as well as some of the later ones, particularly In re Van Dyke’s Estate, 171 Mich. 195 (137 N. W. 79); but, in our opinion, these cases are not controlling here, for the reason that the evidence in the instant case does not bring it within the rule contended for. As to the services rendered by the claimant prior to her marriage, claimant’s husband would have no interest therein. It will be noted in the testimony that almost immediately upon the arrival of claimant and her husband from Grand Rapids, and before any definite arrangement had been made, the contract testified to by the husband was entered into between claimant and decedent, and that upon the same evening he consented to the arrangement and told his wife that she might have the fruits of her labor in that regard. We think that the case is governed by the doctrine of this court in Slack v. Norton, 111 Mich. 213 (69 N. W. 497). It was there held that a married woman is entitled to the benefits of a contract by which she furnished board and care to another, where all the supplies were provided by her and the arrangement was entered into and carried out with the consent of the husband; that in a proceeding by the wife to enforce such a claim against the estate of a decedent the-husband is competent to testify to the arrangement made with the deceased, since he does not stand to the wife as assignor of the claim, and is therefore not within the statute prohibiting the assignor from
“In the present case, the wife was permitted by her husband to keep boarders, furnished the provisions herself, and with which it is apparent the husband had nothing to do. In this respect it differed from the Stackable Case, and the husband was a competent witness to show that this was the wife’s business, and not his own. It is not an action upon an account brought by the wife which has been assigned to her. It is a claim with which the husband had nothing to do, if his testimony given in the case is to believed. The husband did not stand towards the wife as the assignor of the claim, and therefore was not prohibited by the statute from testifying to any arrangement which the wife made with the deceased for his board and care. * * * It has been decided many times in this court that a married woman, with the consent of her husband, may carry on business on her own account, and may be protected in the results thereof, against him and against his creditors, to the same extent as if she were unmarried” — citing Tillman v. Shackleton, 15 Mich. 447 (93 Am. Dec. 198) West v. Laraway, 28 Mich. 464.
We see no difference in principle between the instant case and the one from which we have above quoted. The whole arrangement from the time the parties left Grand Rapids to the time of the death of Mrs. De Spelder seems to have been with the assent and consent of the husband. We think the court did not commit any error in receiving this evidence, or in the manner in which it was dealt with.
“Plaintiff testified that she had conversations with both defendant and her husband as to her employment, and that both promised to pay her. She did work upon the farm as well as in the house.”
It might be well said that in the Kropp Case, the
The last above cited casé was an action of assumpsit brought by the plaintiff, who was a physician, druggist, and grocer, to recover for medical services, drugs, medicines, and groceries furnished to the defendant, a married woman living with her husband. It was held that the case was ruled by Hirshfield v. Waldron, supra, and that the plaintiff was entitled to recover. In that case it was claimed by the plaintiff that he gave credit entirely to the wife because the husband was irresponsible.
In Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412), the defendant, a married woman, was held liable under the rule of Hirshfield v. Waldron, supra, and Meads v. Martin, supra, for medical services rendered by plaintiff for her and for her minor daughter, by a former marriage, who was living with her, at her request, and charged to her, and for which she agreed to pay. The case is an instructive one and distinguishes the case of Howe v. North, 69 Mich. 272 (37 N. W. 213), in which last-named case the plaintiff expressly testified that the husband and wife made the contract with her, and it was said that, if the de
In a number of cases where medical expenses resulting from an injury of a married woman incurred by and charged to her have been in suit, she has been permitted to recover for them upon the ground that she was liable to pay the debt contracted by her. Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); First Commercial Bank v. Newton, 117 Mich. 433 (75 N. W. 934); Foster, Charles & Ewen Co. v. Felcher, 119 Mich. 353 (78 N. W. 120); Boyle v. City of Saginaw, 124 Mich. 348-353 (82 N. W. 1057); Gilson v. City of Cadillac, 134 Mich. 189 (95 N. W. 1084).
In Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17), defendant, a married woman, was held liable upon her express promise to pay for the work and services of plaintiff upon her husband’s property, and the court charged the jury that if the defendant represented that she was the owner of the property she would be estopped from setting up the fact that it was not her property.
It is somewhat difficult to understand the position of appellant’s counsel as to the separate estate of Mrs. De Spelder, because they say in their brief the question is nowhere in issue as to whether deceased had a separate estate from and after 1901, and that this point is not questioned by defendant, and yet their argument proceeds upon the theory that she, being a married woman, living with her husband, had no separate estate to be charged. It is very evident that she believed and supposed she had a separate estate, for all the evidence tends to show that she agreed to provide for the payment of claimant in and by her will. The will of her husband, which is in evidence,
In our opinion the validity of the wife’s contract does not depend upon the thing bargained for, becoming a wife’s separate estate as soon as delivered to her, but whether or not she did agree individually, or personally, to become liable, and the other party looked to her exclusively for payment, whether the thing bargained for was property or services. The real question is: “Did the services benefit her or some member of her family?” We think the court did not err in its treatment of this question.
An examination of the entire record shows that no prejudicial error appears therein, and the judgment of the circuit court is affirmed.