49 A. 650 | Md. | 1901
This is an action of assumpsit by John Staylor against Roger T. Gill, administrator of Catherine Staylor, to recover for thirteen years of continuous service rendered her. Issues were joined upon pleas that neither defendant nor his decedent were ever indebted as alleged, nor ever promised as alleged; that the action did not accrue within three years before suit brought; and that the assets of the estate are not sufficient to pay all the decedent's debts, regard being had to the alleged debt of the plaintiff. Mrs. Staylor's husband was a butcher, and the plaintiff was his nephew, and learned his trade with him. After his death in November, 1885, Mrs. Staylor continued the business which was carried on for her by the plaintiff and her brother, Albert W. Lutz. There was no dispute as to the rendering of any of the services alleged, the only questions being as to the compensation, and whether full payment had been made. The plaintiff was permitted to testify on his own offer without objection, and he swore that he worked for Mrs. Staylor uninterruptedly from July 5th, 1886, to October 14th, 1899, during all of which period, he received his board from her but no money whatever for his services, and it is a singular feature of the case that he was absolutely silent as to any agreement or understanding, express or implied, for any compensation *465 for his services. He testified, however, that in the interval between his uncle's death and his going to work for Mrs. Staylor that he rendered similar services to one Courtney, and received from him his board and five dollars per week; and one Krout, who worked there with him, testified that Staylor showed him two letters from Mrs. Staylor asking him to return and work for her and promising him the same wages he received from Courtney, which Krout says were fair wages for the work. Maggie Donovan, who lived with Mrs. Staylor from 1886 to 1890, testified that she heard Mrs. Staylor tell John he was to get $5.00 a week, and that she also told John in her presence, that Maggie and John, at her death, would get what belonged to her for working for her and attending to her. Mrs. Edwards and her sister, cousins of Mrs. Staylor's husband, testified that they heard her say in 1898, that she had willed everything to John, but that they knew nothing about any wages he was to receive. Mrs. Lafferty, who was a neighbor of hers for many years, heard her say that at her death everything she had would go to John and Maggie. John McKewen heard her say on several occasions, that when she died, the business and the house would be John's, and that she was saving his money for him. These, and several other witnesses who testified to plaintiff's services and their reasonable value, without any knowledge of the terms on which he was employed, were produced by the plaintiff, and at the close of the plaintiff's testimony, the defendant offered two prayers: One, that there was no legally sufficient evidence to establish a contract, implied or expressed, between the plaintiff and Mrs. Staylor, and one, that there was no legally sufficient evidence to entitle the plaintiff to recover, both of which were rejected, and their rejection is the ground of the first exception. Neither in the brief nor in the oral argument was this exception alluded to, and we may, therefore, presume it was abandoned, but it is in any event obvious from the recital of the testimony we have given that there was no error in this ruling.
The fourth exception was taken to the asking and answering *466 of a question permitted by the Court as to whether the Knights of Pythias, of which plaintiff was a member, was not virtually an insurance society. The relevancy of such testimony is not apparent, nor is the injurious consequence of its exclusion apparent, assuming it to be admissible upon any theory of the case, and we shall not pause therefore to consider it.
The second and third exceptions were taken to the refusal to permit the defendant to read in evidence from a memorandum book, entries by Mrs. Staylor of payments made to the plaintiff on account of his wages, which offer was twice made and refused. These exceptions will be considered together. Lutz testified for the defendant that Mrs. Staylor was his sister, and that he was employed by her in her business from 1887 till her death in 1899; that she agreed to pay and did pay him five dollars a week without board; that the plaintiff was to receive three dollars per week with board; that he knew his sister's handwriting anywhere; that he and his sister settled up every week of their lives, and plaintiff was present at these settlements. Lutz was then shown a memorandum book in lead pencil containing entries of regular weekly payments of three dollars each, alleged to have been made by Mrs. Staylor to the plaintiff from June 1st, 1897, to July 5th, 1899, and Lutz testified these entries were in the handwriting of his sister. There was no heading of these entries with the name of plaintiff, nor anything on the face of the writing to show to whom the payments were made. At this point in the testimony of Lutz, the offer was first made and refused, and as he had in no manner connected the plaintiff with these entries by his testimony, we think, the offer was properly refused at that time. Continuing his testimony, however, Lutz said, "Every Tuesday was our settling day. John Staylor would be at my right side, and Mrs. Staylor would be sitting down just settling up the business for the week. He (John), never missed a time getting paid to my knowledge. She always paid him with three dollars, and he would be sitting there and he would take it; all was dotted down on that book at the time we settled; *467
every week Johnny got three dollars and his board. I was in contact with John Staylor every day, and every hour in the day. He never said a word to me about any charges he intended to make. The last time I saw a payment by Mrs. Staylor to John, was three weeks before she died." The defendant then produced five witnesses whose testimony tended to prove that John Staylor had agreed to work for Mrs. Staylor for three dollars a week and board, and some of these testified they had seen these wages paid at various times, and entered by Mrs. Staylor in a book, and the defendant then renewed his offer to read these entries to the jury, which was again refused. It is of course clear, both upon principle and authority that entries made by a party himself charging another, are not admissible as evidence per se. Such entries stand upon a different footing from those made by a clerk or other person in the ordinary course of busines and contemporaneously with the transaction, and in Romer v.Jaecksch,
In Digby v. Stedman, 1 Espinasse, 328, plaintiff had delivered to defendants a watch for repairs, and while in their hands he sold it and gave the purchaser an order for its delivery. In an action of trover, defendants claimed they had delivered it pursuant to plaintiff's order, but the purchaser swore he had never received it. It was proved by defendants' shopman that *468 he had himself seen the watch delivered to the purchaser, and the defendants' shop-books were then offered, in which was an entry of such delivery, in the handwriting of one of the defendants. On objection, LORD KENYON said: "The entry in the book was brought to corrobrate the testimony of the witness, who had himself seen the delivery; that the entry should regularly be in the handwriting of the witness, but where the entry was made in the handwriting of another, and the witness saw it soon after it was made, and the entry had corresponded with what he had himself then observed, such was tantamount to an entry made by himself, and was therefore admissible."
In Cooke v. Curtis, 6 H. J. 93, the rule was laid down that where the credibility of a witness is attacked by the opposite party his prior declarations may be given in evidenceto show his consistency. In Washington Fire Ins. Co. v.Davison,
In the leading case of McAleer v. Horsey,
Thirty years have passed since that decision was rendered, and during this period it has been repeatedly cited and approved. InBloomer v. State,
We are therefore clearly of opinion that there was error in refusing to allow the entries of Mrs. Staylor to be read in evidence upon their second offer.
At the close of the testimony the plaintiff offered two prayers which were granted, and the defendant offered sixteen prayers, of which eight were conceded, three were modified and granted as modified, and five were rejected. The defendants excepted to the granting of the plaintiff's prayers, and to the rejection and modification of his own prayers. Without reciting the plaintiff's prayers, we think the propositions of law embodied in them substantially correct, and that when read together, and in connection with the defendant's granted and conceded prayers, they fairly present to the jury the questions at issue. Some verbal criticism might be made upon that part of plaintiff's first prayer which allows the jury to find "for the value of said services according to the proof in the case," by which however we think the jury must have understood, the reasonable value if they found no contract upon the value, or the agreed price if they found any agreement upon this point. It is apparent we think that the second prayer was intended as a qualification of the first prayer. It refers to the first prayer, not by number, or other express designation, but by repeating the conclusive fact of the hypothesis on which the first prayer was founded, whilst explaining what constitutes a member of a family, and what was meant by the expression in the first prayer "the value of said services according to the proof in the case." This is a case, we think, of qualifying, not contradictory, prayers. Rosenstock v.Ortwine,
The proposition asserted in plaintiff's second prayer is the same laid down in Spencer v. Trafford,
In Bixler v. Sellman,
But the appellant further contends that both of plaintiff's prayers are fatally defective, because they disregard the evidence produced in respect to assets, as well as the pleading in reference thereto, and authorized a verdict in excess of the assets shown.
Sec. 25 of Art. 26 of the Code provides that where an administrator is sued, if he conceives he has not assets sufficient to discharge the plaintiff's claim, he may plead the fact and "a trial by jury shall be thereupon had." In this case, the administrator has pleaded such insufficiency of assets, to which plea plaintiff replied that there are sufficient assets, and issue was joined on that replication as well as upon the general issue pleas and the plea of limitations.
Sec. 26 of Art. 26, further provides that if on any suchtrial, the debt or demand of plaintiff shall be contested, and there be any other issue joined than upon the subject of assets, the jury, if they find for the plaintiff upon the issue so joined, and the amount of assets found by them, be less than the debt or demand of the plaintiff, shall declare the amount of the debt or demand, and also the sum to be paid by the defendant to the plaintiff, regard being had to the amount of the assets in hand, and the debts due from the deceased; and that judgment shall thereupon be entered against the defendant for the penalty of the bond (if suit be upon the administrator's bond), or for the damages laid in the declaration, and the costs of suit (if suit be against the administrator only), to be released upon payment of the sum ascertained to be paid by the verdict of the jury; and by subsequent sections of Art. 26, provision is made for levying the sum so ascertained, either of the goods and chattels of deceased, or of the proper goods and chattels of the administrator; and for levying the residue of the debt or damages, of the goods and chattels of deceased which may thereafter come to the hands of the administrator. These provisions of the Code were not observed. The jury did not pass at all upon the sufficiency of assets, though the undisputed evidence shows that the assets were less than the damages claimed, and less than the amount of the verdict rendered, and it is plain, therefore, that *474
the judgment was not regularly and properly entered, and that judgment would have been arrested upon motion seasonably filed. There was no such motion, however, and the regularity of the judgment therefore is not before us for review. Neale v.Hermanns,
This brings us to the defendant's prayers. There was no error in the rejection of his first and second prayers by which it was sought to withdraw the case from the jury. The fourth prayer was properly rejected, if for no other reason, because the fifth which was conceded, gave him everything he could have secured under the fourth in connection with plaintiff's prayers. *475
The ninth and sixteenth prayers were properly rejected, because they segregate the facts, and instead of confining the conclusion to the effect of these facts they conclude to the whole right of recovery.
There was no error in the rejection of the sixth, seventh and eleventh prayers as offered, or in the modification of these prayers by the Court, and then granting as modified but for the error we have indicated in the third exception the judgment must be reversed.
Judgment reversed with costs to appellant above and below, andnew trial awarded.
(Decided June 13th, 1901.)