Callum v. Rice

35 S.C. 551 | S.C. | 1892

The opinion of the court was delivered by

Mr. Justice McGowan.

Thomas Sartor owned two small tracts of land, and lived on one of them with his wife and daughter Salina. In 1864 he made a deed of gift of one of them to Salina, who, being unmarried, lived with her father. About 1870, one J. A. 'L. Thomas came into the Sartor family in some way not fully explained, but having no family himself, and becoming the owner of a small tract of land adjoining the Sartors, it'was probably considered more convenient for him to live with them. At all events, it seems that he took up his residence there, and farmed his own land, as also part of the Sartor lands, and had general control. This state of things continued until 1883, when Thomas Sartor died, leaving his daughter Salina the only member of the family, and the owner of both the little tracts of land, her father having made her a deed of gift in 1876 of the home tract of land.

After the death of the father, no change whatever was made, but things went on as before until 1887, when Salina died, never having been married, and intestate. S. M. Rice, jr., administered upon her personal estate, which being very insignificant, he instituted proceedings to have the lands sold (both tracts) in aid of the personalty in paying the debts of the estate. After the lands were sold, but before the proceeds of sale were paid out, James A. L. Thomas, on January 2, 1889, under permission given by order of the court, presented an account against the estate of Salina Sartor for $1,313.53 for services rendered, improvements made upon the premises of Salina Sartor, supplies furnished and money paid for Salina Sartor, from the year 1870 to and including the year 1887. The itemized account is stated in “the Case.” . The defendant, S. M. Rice, jr., as administrator, made a general denial, interposed the plea of the statute of limitations, and set up a counter-claim for board, &c., amounting to $2,250.

It was referred to the master, James Munro. Esq., to take the testimony and report upon the claim. Much testimony was taken, and the master made a clear, lucid report (which is not long, and should appear in the report of the case) The master found as matter of law, that all items of the account presented prior to the year 1883 are barred by the statute of limitations. And as matter of fact, he found ‘‘that the testimony does not by any means satisfy him that the claim is a just and valid one. On the contrary, he is satisfied that the same should not be allowed. The testimony shows that during all the years, from 1870 to 1887, Mr. Thomas farmed the lands of Salina Sartor, lived in her house, ate at her table, sold her crops, had control and management of all her property, she merely deriving a livelihood from the use of her place. There are no credits upon the account, and no statement of crops sold was exhibited at the hearing. It appears that during all that period (seventeen years), not a single settlement was had between the parties. There is no proof whatever of a contract between the parties, that Salina Sartor was to be charged with any of the items of account. * * * Testimony was introduced to show that about a year or eighteen months before the death of Salina Sartor, and during an illness, she desired to make a will and to devise to said J. A. L. Thomas one of her tracts of land, as remuneration for services rendered. It appears, however, that she abandoned that intention, as, after her recovery from said illness, she lived a year or eighteen months and died intestate, leaving no acknowledgment in writing of any indebtedness whatever to said J. A. L. Thomas; nor does it appear that she, in the presence of any one, acknowledged any indebtedness,” &c.

Upon exceptions to this report, the case was argued before his honor, Judge Witherspoon, who concurred with the master in concluding that the proof was not sufficient to establish the claim, and made the master’s report the judgment of the court. From this decree the appellant appeals to this court upon eighteen distinct grounds of appeal, which, being in the Brief, need not be restated here. Exceptions 1, 5,16, and 17 of Thomas raise questions of law which will be considered in their order. All the other exceptions, without making special reference to them, relate only to questions of fact, in which the Circuit Judge concurred with the findings of the master.

1 This case is really in the nature of an action at law of Thomas against the administrator Rice, as upon an indebitatus assumpsit for the value of alleged services, improvements, &e., in which the findings of fact below are somewhat like-the verdict of a jury, which this court has not the power to review or reverse. But as it ai’ose in a proceeding in equity, we will give the appellant the benefit of having it considered as an equity case. While this court may review and reverse findings of fact in an equity case, it is perfectly well settled that it will rarely disturb a finding of fact in which the Circuit Judge concurs with the master. Some such rule is well nigh a necessity. There must be an end to controversy. We have, however, carefully read the testimony in the case, and we cannot say that the findings are unsustained by the evidence, or that there was sufficient evidence to support a recovery. It is not seriously contended in the case that there was any express contract to pay a particular amount for the services, &c., for the claim is only for the alleged value of the services. It strikes us as beyond the range of probability, that there could have been ever the intention on the one side to charge for the services, and on the other to pay for them, without any reference to the subject for eighteen years, and until the party most deeply concerned was dead.

2 Exceptions 5 and 16 relate to the claim of Thomas, that Miss Salina Sartor, some twelve or eighteen months before her death, when she was very sick and had sent for Mr. Gee to write her will, “admitted to him (Gee) a liability to Mr. Thomas for what he had done on .the place. She said that she owned two tracts of land about the same size ; that one tract she wished to leave Thomas Nance, as she had partly raised him, and the other to J. A. L. Thomas, as he had been living with them on the place ever since the war, had kept the place up, and done everything on the place, and she thought the place would not compensate him for what he had done. She had always promised him that she would remunerate him at her death, &c., &c.” Fairly construed, this ivas a declaration to a third party as to what she then intended to do for Mr. Thomas by will. But the will was not then written. Miss Sartor got well of that attack of sickness, and lived some twelve or eighteen months after, and then died intestate.

Principally, we suppose, from the fact that she left no will, the master, the judge concurring, found as a matter of fact that she had abandoned the intention previously expressed to Mr. Gee in reference to her will, leaving at her death “no acknowledgment in writing of any indebtedness whatever to said Thomas; nor does it appear that she, in the presence of any one, acknowledged any indebtedness.” I have no doubt that one may, for a good and valuable consideration, make a binding contract to do a certain thing upon a future contingent event, and that in such case the statute of limitations does not begin to run until the action accrues ; that is to say, until the event happens upon which the contract becomes enforcible, as in Thompson v. Gordon, 3 Strob., 198, and Price v. Price, Chev. Eq., 167. But in reference to dispositions by will, a party may change his mind. There is no proof of an express contract in this case to compensate Thomas by will. The generous and voluntary expression of such intention at one time being no contract might be changed, and in this case (as found) was actually changed.

3 But in exception 16, the point is made, that Miss Sartor’s abandonment of her intention expressed to Gee, “gave Thomas a right of action commencing at her death.” That is to say, as I apprehend it, the law would not allow her to abandon such intention once expressed, but would imply such a contract to pay by a provision of her will. This claim, as presented, is not based on a specific contract, express or implied, to pay by a provision of her will, but it is substantially an action upon a quantum meruit for the value in money of the services rendered. Nothing is said in the account sued on about its becoming due at the death of Miss Salina Sartor, or being payable then in a legacy or devise. The precise point was ruled in Hunter v. Hunter, 3 Strob., 521, “that the law will not imply a contract to pay for services rendered to the executrix by a legacy at her death ; nor will such a contract be admitted in evidence to sustain a count in general indebitatus assumpsit for services rendered the testatrix” (or intestate).

This makes it unnecessary to consider the application of the statute of limitations, for as no express contract to pay by will has been proved, or can be implied bp law, there is nothing to prevent the statute from running as in ordinary cases.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.