45 P. 1073 | Wyo. | 1896
This is an action against Henry G. Hay, the plaintiff in error, as executor of the last will and testament of Charles G. Strom, deceased, to recover for services rendered by Severin Peterson, the defendant in error, to decedent, during his lifetime, in the sum of $7,186.67, for 14 years, 10 months, and 20 days, at the rate of $40 per month, the period of time being from November 1, 1878, to September 21, 1893, at which last-named date the employer died. The claim was presented to the executor, and disallowed. The petition declares upon a quantum meruit, and alleges that the reasonable value of the services was $40 per month, and "that plaintiff has received no compensation for his labor during said period." The amended answer, upon which the trial was had, for a first defense denied each allegation of the petition, except the death of Strom, the employer, the probate of his will, the appointment and qualification of the executor, the presentation of the claim, its disallowance, and the filing of the claim with the clerk of the district court of the proper county, and that the plaintiff worked for said Strom during most of the period alleged in the petition, except when he was sick and unable to work. The second defense, in brief, sets forth that the plaintiff below made his home with Strom, and was a member of his family, and was during all of the period mentioned in the petition provided with food, clothing, lodging, medical attendance, and care, and that any labor performed by Peterson for Strom was rendered as a member of Strom's family, without any contract between the parties, or any promise on the part of Strom to pay for the same; that Strom took Peterson into his home as a matter of friendship, and by reason of his charitable and friendly feeling towards him cared for and maintained him as one of his family, furnishing all the necessaries of life and supplies for his subsistence, as well as various sums of money from time to time for his personal needs and expenses, including, among other sums of money, not less than six dollars per month, monthly, during the years 1886, 1887, and 1888.
The third defense alleges that the said sum of six dollars per month during the years aforesaid received by Peterson was all that his services were worth over and above his board, lodging, medical attendance, and care, and that he was paid in full whatever was due him up to December 31, 1892, and that all of the claim of the plaintiff prior to September 20, 1885, accrued more than eight years prior to the commencement of the suit, and was barred by the statute of limitations.
The fourth defense sets forth in a different form the bar of the statute of limitations, showing that on the 10th day of January, 1891, all of the claim of the plaintiff for work prior to January 10, 1887, had accrued more than four years, and was then barred by the statute of limitations as it existed on January 10, 1891, the date of the approval of chapter
The trial resulted in a verdict for the plaintiff below in the sum of $3,297.33, and, upon a motion for a new trial, the court found the verdict excessive, and directed that the motion should be granted, unless the plaintiff, Peterson, filed a remittitur in the sum of $878.33, reducing the verdict to the sum of $2,419. This remittitur was filed, the motion for a new trial was overruled, and judgment was entered for the amount of the verdict as reduced. The deductions made from the verdict were for three months' services while plaintiff below was sick and in the hospital, and by a payment of $6 per month for the years 1886 to 1888, inclusive, amounting in the aggregate to $261, the further reduction allowed by the court being the difference between the rate of wages per month allowed by the jury and the rate of $15 per month allowed by the court, exclusive of board, lodging, and clothing. There are 22 assignments of error in the action of the trial court in rejecting certain evidence offered by the plaintiff in error, the refusal of certain instructions requested by him, and the giving of certain instructions requested by the adverse party. The verdict is also assailed as not based upon sufficient evidence, and as contrary to law. Peterson, the plaintiff below, did not testify as to the contract or term of service, probably because his adversary was the executor of the will of decedent, and no objection is made on that score under the rule laid down by our statute excluding a party from testifying in such matters where his adversary is an executor. The testimony to support the claim of the plaintiff below was that of admissions made by the decedent during his lifetime that he had promised to pay Peterson when he was "through with him," one of the witnesses stating that the amount was $40, and another $30, per month. There was other testimony to the effect that the decedent had said that he had not paid Peterson anything, as the latter was unable to take care of his money; and that decedent had shown a package, which he had put in his safe, to a witness, and stated that it was Peterson's wages. The services of Peterson were of long daily duration, and consisted of his attendance at the liquor saloon of his employer, where he had waited upon customers, and performed menial labors in cleaning out the saloon. Besides these services, he had performed personal services in waiting upon his employer. The evidence very clearly establishes that Peterson did not render his services as a member of Strom's family, nor in return for board, lodging, and medical care when sick. A portion of the time-about three months-he was sick at the hospital, and was a county charge. The instructions for the defense that the services were rendered as a member of the family of Strom seem to fairly present the law, and the burden of proving that there was an understanding that Peterson was to receive nothing for his services except his maintenance was very properly put upon the defendant below. An agreement to pay for services rendered and accepted is presumed unless the parties are members of the same family, or near relatives. Lawson, Pres. Ev. 74. The parties were not relatives, and the evidence establishes the fact that Peterson was not considered a member of Strom's family, but that he was to be paid for his services, the amount of which was not clearly fixed. It is unnecessary to review the instructions complained of on this point, as they fairly present the law governing this branch of the case. Other assignments of error attack the verdict as excessive. As modified and reduced by the court, the allowance of $15 per month is not excessive, if plaintiff should have recovered, and the verdict should not be disturbed on that ground.
The statute of limitations is pleaded in bar, and is presented by the following instruction requested by the plaintiff in error and refused by the court: "The jury are instructed as a matter of law that the plaintiff cannot recover for any services or work performed by him for the deceased in his lifetime prior to eight years preceding his death." The other defense of the old statute of limitations in force during a period covered by the employment is not urged upon our attention, and we shall not consider it. The action could only be brought within eight years after the cause of action accrued. It is asserted that the right of action accrues and the statute begins to run on each item of the account from the day of its proper date,-that is, from the day of the delivery of the article or work done,-as was held in Courson's Ex'rs v. Courson,
The court was asked to instruct the jury that the declarations of a creditor, as in the case of plaintiff below, that any debt of the deceased to him is discharged, or that there is nothing due him, is prima facie evidence of payment. Peterson admitted to witnesses that Strom owed him nothing, directly after the latter, in his last sickness, asked him, if there was anything due, to make out his bill, to which interrogation of Strom Peterson did not respond. This evidence did not particularly relate to an admission of payment, but might tend to show that there was no original contract to pay for services rendered by Peterson. It was strong evidence against Peterson, but the court and jury seem to have treated it of small moment, taken in connection with the other evidence in the cause; and we think that their action in this respect, although the admission was not denied by Peterson, is not error, because the weight to be given to testimony of mere admissions is to be determined by the jury, and it may be proper for the court to instruct them that such testimony is usually unsatisfactory, and should be received with great caution. Saveland v. Green,
Some of the books of account of the decedent were destroyed by the plaintiff, Peterson, and the only books found were those discovered concealed under a barrel, and a calendar found hanging on the wall. Upon the latter entries were made showing that at the close of January of that year Peterson was paid for one month, and at the close of the year was paid in full, and these entries were in the handwriting of decedent. Judge Potter, who drew up the will, after the death of the testator left Peterson in charge of the place of business of the decedent, where there were a number of account books. He afterwards examined them carefully, but was not allowed to state whether there were any charges therein against any employe of the decedent, Strom. At the time he was questioned upon this matter it had not been shown that the books, or any of them, had been destroyed, and it seems that the question was properly objected to. No exception was taken to the ruling of the court sustaining this objection, and the question, although a vital one in the case, was not. renewed. Judge Potter examined three or four of the books, he says, very carefully, so that he had a general idea of them, without examining any particular account. The books might have been intact when the inventory and appraisement were taken, which took a day or two; and the witness stated that he was under the impression that he examined the books at that time, but may have examined them before the inventory was taken. He had charged Peterson to leave everything as it was, and, when he discovered that the books were burned, spoke sharply to Peterson, reminding him of the direction, and asked him why the books had been destroyed. Peterson replied that Strom, the deceased, had told him to burn them up. This answer was made promptly, and Judge Potter says there was nothing extraordinary in Peterson's conduct when he made this explanation. The instruction asked for on this point was as follows: "If the jury believe from all the evidence in this case that the books of account of the deceased, or any of them, were destroyed by plaintiff, a presumption arises that, had the truth appeared by said books, it would have been against his interest." This instruction was refused, and the court gave no other hearing upon the question. The defendant was entitled to an instruction covering the point, for it is a universal rule that the suppression or destruction of evidence raises the presumption against the spoliator, where the evidence is relevant to the case, or where it was his duty to preserve it. "Omnia præsumuntur contra spoliatorem." Lawson, Pres. Ev. 140 et seq. Where the spoliator is the claimant, the fact of spoliation alone raises a presumption against his claim. Where a deed, a will, or other paper is proved to be destroyed, or suppressed, or there is vehement suspicion of its having been done, the presumption, in odium spoliatoris, applies in favor of the party who claims under such paper, though the contents are not proved. Id. 152, and cases cited. But there is great danger that the maxim may be carried too far, and it should be cautiously applied. In this case the mere destruction of the books is not sufficient to warrant the presumption that their contents were against the interest of Peterson, for they were burned after they had been examined, and some time after the funeral of Strom. There was no attempt made to conceal the books by Peterson, or to prevent their examination, and it nowhere appears that there were charges against Peterson on the books destroyed, although it does appear that the books discovered did contain charges against him. Whether Judge Potter's examination was sufficient or not to show that there were such charges does not appear; neither does it appear that he did not know, or could not remember, whether there were any charges in the books against the plaintiff. However, the instruction asked was too broad, and should have been modified by counsel, for the mere fact of the destruction of the books alone does not show that they were evidence against the interest of the spoliator. His conduct might not have been that of a spoliator, but rather that of a stupid or ignorant man, who thought that he had a duty to perform, enjoined upon him by his deceased employer; and there are some indications in the evidence that support this view. Some four months prior to his death, Strom published in a local daily paper a notice which the publisher states he believes was brought to him by Peterson, entitled "Extends Thanks," which states that on the 7th of the month (May, 1893) Strom closed his liquor house, and that he would store his goods, and, if business would justify, would probably open the next summer, and, if not, he would ship his goods away. He then presents his highest compliments to his "proper" customers, and states: "Remember, if I am guilty to creditors for payment, come and collect. If any persons are guilty to me for liquors, please keep this [the notice] as a present." This notice was introduced for the purpose of showing that Strom was settling up his accounts, and that, in addition to his general custom of meeting his obligations promptly, he had given notice to his creditors that he desired to pay his bills. Other testimony was introduced, showing that he had directed the payment of his local bills, and had requested that money be taken from his safe for that purpose. But the publication referred to also indicates that he had no desire to press his claims against his creditors, and is in harmony with Peterson's statement that Strom had directed him to burn his books. No instruction was asked upon the question of this explanation of Peterson, nor were the jury asked to be instructed to disregard it as evidence. It went to them as his explanation of his conduct in destroying the books. It will be noticed that it appears that an inventory was taken of the property of the estate, but whether before or after the destruction of the books does not appear. It should have been shown that the accounts against the creditors of the estate were not in this inventory, or were not preserved. If they were, and had Peterson's account, if there was any against him, appeared in such inventory, it could have been introduced as secondary evidence.
The instruction asked for presents the British law governing the spoliation of documents. Broom, Leg. Max. 940; 1 Phil. Ev. (Cow. H. Notes) 639; Houser v. Austin,
The trial court refused to admit in evidence a certain calendar found in the place of business of Strom, upon which was written in Strom's handwriting certain statements. It was marked for identification, and upon the refusal of the court to receive it as evidence the counsel for defendant below offered to prove by it that in the handwriting of Strom, the deceased, across the date of January 30, 1892, appeared the words, "Severin paid for a month," and across the 31st day of December, 1892, also in the handwriting of the decedent, appeared the words, "Severin Peterson paid to this day in full." This calendar was found hanging on the wall, and one account book was found under a barrel by a son of decedent, in a room where the safe was kept. The witness was not produced, nor his deposition taken, as he was in Sweden; but the fact of the discovery of these papers and books was shown by the affidavit of the executor, which was admitted in evidence in order to prevent a continuance. This affidavit states that other memoranda in Strom's handwriting appeared upon the calendar, but no reference is made to such matters other than the two entries mentioned in the offer of counsel when the calendar was sought to be introduced. Nowhere in the record is it disclosed what these other entries were, and the contents of the calendar are not before us in any form, except as to them. It is asserted that it was shown that it was the custom of the decedent to make memoranda upon the calendars, but this is not borne out by the testimony. The calendar was not a book of original entry, neither does it appear to have been kept in the usual course of business of the decedent. It cannot be said that it was one of the books of account of the deceased. The statute applicable to such evidence, among other things, provides that a party shall not testify where the adverse party is an executor or administrator, with certain exceptions, one of which is as follows: "Sixth. If the claim or defense is founded on a book account, a party may testify that the book is his account book, that it is a book of original entries, that the entries were made by himself, a person since deceased; or a disinterested person nonresident of the county; whereupon the book shall be competent evidence; and such book may be admitted in evidence in any case, without regard to the parties, upon like proof by any competent witness." Rev. St. § 2590. Unfettered by statutory provisions, the American cases, taken together, are to the effect that entries made in the regular and usual course of business are admissible in evidence after the death of the person who made them, on proof of his handwriting; and during his life, if authenticated by himself. Other private entries may be used to refresh the memory, but are not admissible in evidence. Notes to Price v. Earl of Torrington, 1 Salk. 285; Doe v. Turford, 3 Barn. Adol. 890; 1 Smith, Lead. Cas. 581. The statute does not seem to change this rule, and it is necessary to show that the book offered is an account book, or what may reasonably be considered to be such. The most liberal rule was adopted by the supreme court of Vermont in Gleason v. Kinney's Adm'r,
To paid *** for you," while on the calendar offered in this case the entry was, "Severin paid for a month," and, "Severin Peterson paid to this day in full." These entries do not disclose the amount paid in either case, and the memorandum on the calendar, although a proper subject for book charge, was not entered "as such charge,"-an omission that appears to be studied. But this Vermont case does not appear to be in harmony with other cases in that state, or with cases elsewhere. Said the court in Barber v. Bennett,
Another objection to the entries on this calendar is that they were not shown to be continuous, as the entries must be in a book used continuously for the purpose (1 Whart. Ev. § 683, citing Kibbe v. Bancroft,
This cause was twice tried, the second trial resulting in a much larger verdict for the plaintiff than was first awarded to him. While there is undoubtedly a sufficient reason for instituting the proceedings in error, and our impressions are that, were we to decide the cause in the first instance, we might have reached a different result than that arrived at by the jury and the trial court, yet, upon the whole, we cannot say that there was not sufficient evidence to sustain the judgment. The claim was a stale one, and the plaintiff below stated that the deceased owed him nothing. He did not deny this, although he was a competent witness to make the denial or explain his admission; yet there is sufficient evidence to sustain the judgment. The law was fairly presented to the jury, with one exception,-the matter of the destruction of the books,-and a proper instruction was not requested upon this point. The services rendered were of the most menial character, and were performed at unusual hours, and the circumstances of the case lead us to believe that Peterson was relying largely upon the bounty of his employer, and expected provision to be made for him in the will. It seems as if much difficulty could have been avoided in the case, and the truth clearly ascertained, either by probing the conscience of the plaintiff below by interrogatories as to the original contract and as to payments, by permitting him to testify to the facts in court, or by calling him as a witness. The executor cannot be deprived of his right to compel the adverse party to testify as he might any other witness, under our Code provisions. What is intended for the protection of the estate in guarding it against fraudulent claims or unfounded causes of action should not be permitted to operate as a source of injury, and many times the interests of an estate may urgently require that an executor or an administrator should waive what belongs to him as a privilege, and call the opposite party as a witness. "The facts upon which he founds his defense, or upon which he bases his claim, may be locked in the breast of the adverse party, and without his testimony a failure of justice may ensue. The legislature could not have designed to place the estates of deceased persons at such disadvantage by depriving them of evidence within reach necessary to their protection against imposition and fraud. The adverse and surviving party, when compelled to testify by the executor and administrator, cannot reasonably complain; for, although a party, he can then be examined fully in his own behalf on the subject of his examination in chief. Niccols v. Esterly,
Mr. Justice POTTER having been of counsel in the trial court, Hon. J. H. HAYFORD, judge of the district court of the Second judicial district, sat in his stead. CONAWAY, J., and HAYFORD, Special Judge, concur.