Gauss v. Trump
135 P. 910
Mont.
1913
Check Treatment
MR. JUSTICE SANNER

delivered the opinion of the court.

Thе complaint of respondent alleges in substance that about May 15, 1906, he entered into an oral contract with Olive Ahrens, *96now deceased, in and by which it was agreed that he should perform work and labor in the care and management of her ranch during her lifetime in consideration that she should furnish him food, clothing, and other necessaries of life and that she should devise her said ranch property to him at her death; that he thereupon entered upon the duties thus imposed upon him and continued to discharge them until her death on Dеcember 14, 1910, and fully performed the contract on his part; that in March, 1910, “the said agreement was by mutual consent so modified that he, instead of receiving each year an unliquidated sum as and for necessaries under said agreement, took a lease of the premises which provided that he should receive one-half of the proceeds thereof, which was executed in lieu of the provision in said agreement for necessaries”; that his services rendered to her under the agreement were of the reasonаble value of $75 per month, or $3,450 in all, no part of which has been paid; that Olive Ahrens died testate, but her will, which was duly admitted to probate, contained no devise or bequest whatever to him; “that thereafter, and after publication of notice to creditors of thе estate of the said Olive Ahrens, deceased, had been made and before the time in said notice specified for the presentation of claims against the said estate had expired, and on or about the 19th day of September, 1911, the plaintiff * * * presented his claim for the reasonable value of the services aforesaid # * * duly verified, * * * to the defendant herein as administratrix, # * * which claim was rejected; that thereafter, and on or about the 7th day of October, 1911, and before the time for presentation of claims against the said estate had expirеd,” the plaintiff presented an •amended statement of his claim, duly verified, which claim received no action on the part of the administratrix, though more than ten days have elapsed.

The answer admits that in the will of Olive Ahrens there is not any devise or bequest to plaintiff; thаt plaintiff presented his claim on September 19, 1911, which was rejected; that he presented his amended claim on October 7, 1911, and that more *97than ten days have elapsed since said presentation; alleges that if plaintiff ever did any work for Olive Ahrens he has beеn fully paid for the same, and that in the will of Olive Ahrens ft is stated that the reason she makes no special bequest to him is because she feels that she has provided for him as much as the situation demands. Otherwise ‍‌​‌​‌‌​‌‌‌‌​​​‌​​‌​‌​​‌​‌‌‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​‌‌‍than as above set forth, the answer denies all the allegatiоns of the complaint and also pleads a counterclaim upon a promissory note for $100, given by the respondent to Olive Ahrens on November 24, 1909. The reply admits the execution of the note but otherwise denies all the allegations of new matter contained in the answer.

The cause was tried to the court sitting with a jury, and the verdict was for the respondent, upon which judgment was entered to the effect that respondent “have and recover from said Louise C. Trump, as administratrix,” the sum of $3,694.50, with costs amounting to $105.50. Appellant made and presented her motion for new trial, which was denied, and from the order denying a new trial, as well as from the judgment, she appeals.

But three questions are presented, viz.: Does the complaint state a cause of action ? Does the evidence support the verdict ? Is the judgment valid in form? Of these in their order.

1. The burden of the attack upon the complaint is that the [1,2] action is under a special statute authorizing suits to vindicate rejected claims against estates; that the plaintiff must in every such case bring himself within the statute by appropriate averments to the effect that his claim was presented in time; that the cоmplaint does not show this, the allegations relative thereto and quoted above being mere conclusions instead of direct allegations from which the necessary conclusions might be drawn by the proper authority. The eases cited by counsel all hold that conclusions of law are ineffective for any purpose in pleading—a proposition indisputable and last enunciated by this court in Ridpath v. Heller, 46 Mont. 586, 129 Pac. 1054—but that a claim was presented within the time prescribed in a notice is a clear matter of fact implying proof of the time of presentation as well as of the notice and its terms, leaving the deter-*98urination of the legal effect to the court. It may be conceded that the allegation in question is not in the best possible form, but it is an obvious attempt to state the fact in its ultimate, issuablе aspect and at most is an inference rather than a conclusion of law. Argumentative and inferential averments are, it is true, as obnoxious to good pleading as are conclusions of law, but their value is not the same. Conclusions of law, unsupported by the essential averments of fact, are always ineffective; but, as against an attack for lack of substance, the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties ‍‌​‌​‌‌​‌‌‌‌​​​‌​​‌​‌​​‌​‌‌‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​‌‌‍(Rev. Codes, see. 6566), and whatever is necessаrily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred. (County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81.) Where the inferential allegations of a pleading are not attacked by special demurrer or motion, as may be appropriate, we know of no modem authority which denies the right of the pleader to make proof under them; and that such an allegation as the one before us will support proof was intimated in Jones v. Rich, 20 Mont. 289, 50 Pac. 936, and expressly decided in Wise v. Hogan, 77 Cal. 184, 19 Pac. 278. To all this we add the statutory injunction that no judgment shall be reversed by reason of any error or defect in the pleadings which does not affect the substantial rights of the parties. (Rev. Codes, sec. 6593.)

2. That the original agreement between the respondent and Olive Ahrens was substantially as alleged in the complaint, and that for over three years the respоndent cared for and managed her ranch under it, is abundantly proved. The complaint, however, conceding that it was not fully performed according to the original terms, pleads a modification, and the questions of fact seriously debated are: Was there such a modification? and, if there was, did the respondent perform the agreement so far as performance was required of him?

We are urged by appellant’s counsel to remember in approaeh[3] ing this question that claims such as the one at bar are easy to make and hard to disprove; that the only witness who could *99specificаlly deny the alleged modification, establish nonperformance of the agreement, or show that full compensation had been made, is dead; that no defense is possible save as it may be found in the improbability of the stories of the plaintiff’s witnesses when tested by сomparison with other evidence in the case or by ordinary rules of human conduct under similar circumstances. In so far as this admonition implies that courts generally should scrutinize with more than usual care the quality of the proof presented in such cases, assent mаy be given; and, in so far as the proof consists of oral declarations of the deceased, caution was enjoined upon the trial court and jury by the statute. (Rev. Codes, sec. 8028; Escallier v. Great Northern R. Co., 46 Mont. 238, 127 Pac. 458.) We can find, however, no authority in our Code for ‍‌​‌​‌‌​‌‌‌‌​​​‌​​‌​‌​​‌​‌‌‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​‌‌‍the application of any diffеrent rule as to the quantum of proof from the one prescribed for civil actions generally or for the assertion that this court may or should employ any different canons of review from those which obtain in other actions at law. The jury, who were the judges of the weight and credibility of the testimony, the trial judge, who, if he thought the verdict contrary to the weight of the evidence, could have set it aside, have expressed their satisfaction'with the respondent’s contention. It is to be presumed that they exercised all the caution and sсrutiny enjoined upon them by the law, and it is not to be supposed that they were any the less solicitous for the integrity of decedents’ estates than are we. The question before us is, therefore, the same as in other appeals in actions at law, viz., whether there is any substantial evidence to support the verdict of the jury.

Turning, then, to the evidence, we ascertain that after respondent had cared for and managed the property under the original agreement for the period of forty-six months and until March, 1910, he then took the ranch for a year on shares. In October, 1910, after the harvest ’ season, he left the place and took a position with one Joslyn, and the place was leased to one Markwell for the period to expire March 1, 1912. Doubtless these naked facts, if unexplained, would suffice to defeat the *100respondent, for they would show that he had not performed his contract and would suggest that it had been terminated by mutual consent. But there are items of evidence which show the situation from and after March 1, 1910, when respondent tоok the ranch on shares, to have been otherwise than either an abandonment of the contract or a failure to perform by him. He testifies: “The agreement I had with Mrs. Ahrens was modified and I took the ranch on shares March 1, 1910, to March 1, 1911. * * * After I got married Mrs. Ahrens said, ‘John, yоu better take the place and lease it; your wife will need money and won’t feel like coming to me for it; and you lease the place and whatever you make off the crop when you need money you will be able to get it for yourself.’ Mr. Joslyn came down thеre to buy some hogs; he first came down to buy some cows; we sold him the cows and then he came back the next day and he said, ‘I would like to get hold of a man like you.’ I. told Mrs. Ahrens what Mr. Joslyn was going to give me, and she said, ‘You go up there and try it a year. ’ I was there (at the Ahrens рlace) off and on up to the time of her death; when I came down town I would stop there.”

Phil. Wagner testified: “I had some talks with Mrs. Ahrens regarding the situation after John moved off the place; one thing was he was getting good wages and another thing they didn’t have any suitable plаce for him to live and.they couldn’t very well live there together; ‍‌​‌​‌‌​‌‌‌‌​​​‌​​‌​‌​​‌​‌‌‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​‌‌‍she intended to build across the road from there. * * * I think it was last fall, a year ago, that he left the Ahrens place. Markwell moved into the little house that Gauss occupied, and Mrs. Ahrens told me she had rented thе place to- him for the next year. ’ ’

Mrs. Markwell testified: “We moved onto this land October 9, 1910; we were to have the place until the 1st of March, 1912; I told her (Mrs. Ahrens) we did not want to rent it for one year, and she said she did not think Mr. Gauss would be gone for more than a year. Mrs. Ahrens told me thаt Mr. Gauss was going to Dakota to look after some property belonging to his wife.”

*101George Johnson testified: “The last time I saw Mrs. Ahrens was at my house about the middle of October, before she died; she said she had her will made and she was giving the bulk of her property to John Gauss. John was not living on the ranch at that time; she said he had gone over to Joslyn’s temporarily.”

C. B. Calkins testified that sometime in 1906 or 1907 Mrs. Ahrens had executed a will in his possession in which all her property was devised to John Gauss.

In their able brief for appellant, counsel say: “The reason he did not stay there and take care of the ranch until the death of Mrs. Ahrens was because the parties had made some new separate agreement which Mrs. Ahrens, now dead, cannot detail and which John Gauss chooses not to state.” This may indeed be. [4] It сould be wished that the evidence were more satisfactory, for there are circumstances which tend to give color to the theory of a mutual abandonment of the agreement. But these circumstances were all before the jury; the inferences to bе drawn from the testimony were within their province; and, though there was room for a contrary conclusion, it is also a legitimate inference from the testimony that the change from the agreement as originally made to the lease on shares and from that to the tеmporary sojourn at Joslyn’s were with Mrs. Ahrens’ entire approval and without any understanding that the agreement was to be affected thereby. If this were the fact, nothing could prevent a recovery on quantum meruit against her had she lived and afterward repudiated the agreement. She alone had the right to say whether he had, up ‍‌​‌​‌‌​‌‌‌‌​​​‌​​‌​‌​​‌​‌‌‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​‌‌‍to that time, kept the agreement to her satisfaction or whether she should regard his conduct as a breach thereof (Burns v. Smith, 21 Mont. 251, 69 Am. St. Bep. 653, 53 Pac. 742); if she did not so regard it, if she acquiesced with apparent satisfaction in what he had dоne, but thereafter determined not to abide by the agreement, her subsequent death could not deprive him of the same remedy.

3. The form of the judgment is assailed, and rightly so. It [5] provides that the plaintiff “have and recover” from the *102defendant, as administratrix, the amount of the verdict and costs, whereas, it should simply have .adjudged that the defendant, as administratrix, pay in due cоurse of administration the amount ascertained to be due. (Rev. Codes, see. 7536.) But this does not affect any substantial right and forms no ground of reversal.

It is ordered that, upon the return of the cause on remittitur, the district court correct the judgment to comply with section 7536, Revised Codes, the judgment to stand affirmed as corrected. The order denying a new trial is also affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.