204 P.2d 602 | Kan. | 1949
The opinion of the court was delivered by
This was a proceeding commenced by Sonny Brown to establish a demand against the estate of Nannie Nicholson, deceased. From a judgment in his favor, her executrix appeals.
Nannie Nicholson died in August, 1945. At a date not disclosed by the abstracts, her will was admitted to probate and an executrix was appointed. On September 18, 1946, Sonny Brown, on occasion referred to as Sam Brown, filed his claim in the amount of $3,600 for labor performed and materials furnished from April 8, 1943, to July 31, 1945, in making improvements on premises owned by the deceased, described as 631 Winona avenue, Kansas City, Kan., and for two years taxes paid, under an oral contract with the deceased to reimburse him. The result in the probate court is not disclosed but there was an appeal to the district court. In that court the executrix filed an answer containing a general denial, and allegations that Brown 'married the daughter of the decedent on May 6, 1943, and immediately moved into the home of Nannie Nicholson and
“1. Did Sam Brown pay any taxes on the property owned by Nannie Nicholson at 631 Winona Avenue, Kansas City, Kansas? A. Yes.
“2. After the marriage of Sam Brown and Ella Richards on May 6, 1943, did Nannie Nicholson request him not to buy a place? A. Yes.
“3. Was the house and buildings on the property known as 631 Winona Avenue, at the time of the marriage of Ella Richards, daughter of Nannie Nicholson, to Sam Brown, in need of repair? A. Yes.
“4. Was there an agreement between Nannie Nicholson, deceased, and the claimant, Sam Brown, that Sam Brown was to furnish money and material in making improvements on the property owned by Nannie Nicholson, deceased? A. Yes.
“5. If you answer the preceding question ‘yes,’ then state if said agreement provided that Sam Brown was to receive compensation out of the property owned by Nannie Nicholson or her estate for all money and anything furnished by him in making said improvements? A. Yes.”
No motion was made to set aside any of the above answers. The executrix did, however, file her motion for judgment in her favor and against claimant, notwithstanding the verdict of the jury, and her motion for a new trial. Both of these motions were denied and she appealed to this court.
Thereafter the parties entered into a stipulation “for the purpose of saving expense in transcript and abstract on this appeal” as follows, it then being stated that claimant produced evidence as to labor performed and materials furnished in the total amount of $3,512.89, that all was used in making improvements on the premises owned by deceased between May 1, 1943, and May 1, 1945, “and during all of said time the said Minnie (Nannie) Nicholson lived in said premises and said labor was performed and material furnished with her knowledge and consent by claimant.” That Sam (Sonny) Brown resided in said premises from May 6, 1943, until after the death of Nannie Nicholson, and that the stipulation, together with evidence shown by the transcript is all of the evidence necessary to determine the issues raised on the appeal.
“In order to recover for the services, the plaintiff must affirmatively show either an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as exhibited a reasonable and proper expectation that there would be compensation (citing cases).” (1. c. 510.)
Under the test fixed by our decisions, the evidence supported the jury’s answers to special questions, and its general verdict, and the judgment of the trial court.
No error appearing, the judgment of the trial court is affirmed.