Carl v. Northcutt

48 Colo. 47 | Colo. | 1910

Mr. Justice Bailey

delivered the opinion of the court:

Plaintiff in error filed a claim for $2,500.00 with the county court of Washington county,' against the estate of 'Michael Enright, for services rendered and care given to him in his lifetime, through a period of four years and eight months. Upon this claim the county court allowed the sum of $143.40, from which allowance there was an appeal to the district court of the county. Trial was had before that court with a jury. At the close of the testimony of the claimant the judge instructed a verdict for the estate, and entered a judgment of dismissal thereon. To review this judgment plaintiff in error brings the case here'.

The verdict directed by the district court was right. The evidence offered to show the quality and amount of service was meager, indefinite and unsatisfactory. Not a vestige of evidence was introduced to establish the worth of that service, whatever it may have been. In a total absence of such testimony' no part of the claim could properly be allowed.

Some" testimony, all of an uncertain and halting character, was introduced tending to show that deceased, some time prior to his death, had promised to remember claimant in his will, for the kindness and consideration that he and his wife had extended him during his lifetime. This testimony tended to show that the deceased had in his mind the purpose, by way of gift, to leave to plaintiff in error the undivided one-half interest which he had in the house, and ground upon which, it stood, at Longmont, Colorado, then occupied jointly by deceased and the claimant and- his family, such interest being of the valúe of about $2,375.00. The testimony indicates that this was in contemplation by deceased purely as a voluntary matter. If, however, as is contended, the promise on the part of deceased was supported by a valuable and adequate consideration, then the cánse of action of plaintiff in error, if any, was for specific performance of that contract, and not for services rendered. The proof offered is in hopeless variance with the claim as made, and not only does not support it, but does not tend to do so. The judgment is affirmed. . Affirmed.

Chief Justice Steele and Mr. Justice Musser concur.