Freeman v. AckersonFreeman v. Ackerson
The opinion of the court was delivered by
Thе plaintiff, an old lady seventy years of age, let the defendant have $2,500 to put in a housе lie was building, upon his agreement that he was to provide her a home for the rest of hеr life. She lived with him a little more than two years assisting in the work of the household. He told her aftеr a while' that she would have to pay boaijd, and although this was withdrawn, he sold the house during her аbsence on a visit; went to his mother’s house, told her not to come there and failed tо provide a new home. Subsequently, he moved to Paterson and then asked her to cоme down to live with him. She di/d not accede. After the sale of the house, she seems to hаve asked him for the money, and she says he offered to give her a mortgage, payable in six months, to which she assented. At- the end of the six months she demanded payment. He refused and said he never would pay. The complaint avers a loan, but it became clear by the plaintiff’s testimony that the agreement was not a loan hut a contract for a home. Her testimony is uncontradieted, since the defendant called no witness. When the plaintiff rested the defendant moved for a nonsuit. This motion was denied, and thereupon the plаintiff moved to amend. The court charged that if the jury found the money was a gift by the plaintiff to dеfendant there could be no recovery; that if the contract was that plaintiff be furnished a home and the defendant refused, the plaintiff had a right to recover, but could not recover for interest during the time she lived with defendant; and that if the defendant was ready to fulfill his рart of the agreement that was; all the plaintiff could demand. He told the jury that they werе to determine, first, whether the money was a gift; then whether it was a contract, and whether the contract had been carried out by the defendant; that if the
This recital suffices to show that a nonsuit or direction of a verdict for defеndant would have been improper. The verdict was not contrary to the charge of the court properly understood. The learned trial judge did not mean that the jury should ignorе the breach of which we have spoken. If he had meant that, this part of his charge wоuld have been error harmful to the plaintiff and we would not on a rule to show cause set aside the plaintiff’s verdict because it was contrary to this part of the charge. Thе reason that the verdict was against the weight of the evidence cannot prevail, since the plaintiff was uncontradicted, the defendant not testifying in his own behalf. Nor can the reason prevail which relies on the failure to discharge the jury. The trial judge was right in striking out the remarks of counsel as to the amount of money the plaintiff had, and when he said there wasn’t anything in the case to show what the woman had, he did away with any possible effect thе remark might have had with the jury; in fact, the occurrence was probably more harmful to thе plaintiff than to the defendant. It was proper for counsel to read from the counter-claim. Statements therein were in effect declarations by the defendant, inadmissiblе on the defendant’s offer if self-serving, but admissible on the plaintiff’s offer. There was, we think, an inaccuracy in the trial judge allowing a recovery of the $2,500, with interest, as if it were a loan, instead of putting the question to the jury as one of the amount of damages for breach оf contract, but no