191 Ind. 309 | Ind. | 1921
The appellee, Elbert P. Hilton, filed a claim against the estate of William J. Smith, deceased. The substantial averments of the claim are as follows:
That said William J. Smith on or about the-day of-:— was married to one Fannie Hilton, who was a sister of John Hilton, the father of this claimant and that they lived together as husband and wife, without having any children bom to them, until March 26, 1912, when his wife, the said Fannie Smith, died childless; that the said William J. Smith also died childless on' April 2, 1912, each leaving neither father nor mother surviving.. That soon after the said marriage the said William J. Smith and wife settled on a farm in Grant county, Indiana, and being childless, the said William J. Smith aiid wife entertained a very strong affection for this claimant, who was then only nine years of age, and proposed to this claimant and to his father and mother that if this claimant would give up his own home and his parents and go and live with the said William J. Smith and wife until he was grown, the said William J. Smith would make him his only heir and would will or convey to him all of his property so that he would receive the same upon the. death of said William J. Smith and his wife. That this claimant and his parents were very much attached to each other and at first declined said proposal, the parents declining to give up this claimant as their child on account of their parental affection for him and this claimant being unwilling to abandon his home and his parents, to whom he was affectionately attached. The claimant further alleges that said William J. Smith and his wife .by frequent visits to his said home and parents, and by cultivating the affections of the said claimant and by frequent repetitions of said promises, and by assuring this claimant and his parents that he should have a good home with
This complaint was answered by a general denial and upon the issue thus joined the cause was submitted to a jury for trial, which returned a verdict for the claimant of $7,100. Judgment was rendered on the verdict of the jury and from such judgment the appellant appealed and assigns as error that the court erred in overruling appellant’s motion for a new trial.
The appellant claims that the giving of instruction No. 13 was error, because it gave the jury a false measure by which to ascertain the value of the service for which claimant sought to recover in this action. The instruction is as follows:
“The measure of damages in this case, if you find for the plaintiff is the reasonable value of the service rendered under the contract. In ascertaining the amount of damages, you may take into consideration all the surrounding circumstances under which the contract was made; the fact that the decedent and his wife were without any children of their, own; the fact, if it is a*314 fact, that they desired the companionship, society, love and affection of the claimant; the fact that the decedent desired and needed his help in the home to wait on him when sick, do errands around the home for him, and perform such acts of service a,nd companionship about the home as could not or would not be performed by ordinary help in such capacity, if you find that such was the fact; you may consider the value which the decedent and his wife also placed upon the companionship as shown by the evidence, if any, love and affection of the defendant as a child; and you may also take into consideration such value as the decedent and his wife placed upon such service as shown by the evidence, if any, in determining what such service was actually worth to the decedent during the time the same was rendered; and from these and all other facts and circumstances in the case, you may assess such damages as in your judgment will fully compensate the plaintiff for all of the service, companionship, association and labor performed in said home for the use and benefit of said decedent and his wife.”
In Lisk v. Sherman (1857), 25 Barb. (N. Y.) 433, the. action was upon a contract for services to be performed in the future, and to be paid for in real and
In Ewing v. Thompson (1870), 66 Pa. 382, in an action to recover for services rendered under parol contract for compensation by a conveyance of land it was decided that the only issue was the value of the services and that upon that issue the value of the land was irrelevant.
In Fuller v. Reed (1869), 38 Cal. 99, the plaintiff had rendered services in effecting the sale of lands on a parol promise that he should have a portion of the purchase money. It was held that the measure of damages in an action for the services was the value of the services, and that evidence of the value of the lands was inadmissible.
In Emery v. Smith (1865), 46 N. H. 151, the contract between the parties, was by parol, for services for two years at $100 for the first year and $200 for the second year. In an action for services performed under the contract, it was held that the contract was within the statute, and was not taken out of the statute by its performance by one side; that recovery for the services must be sought under a quantum meruit, and that the agreement was not competent evidence to affect the amount of the compensation recoverable.
The pretext upon which evidence of the class referred to has sometimes been admitted is that its admission was. necessary to prevent fraud. The argument is that the statute was designed to prevent fraud, and should. not be made the means of perpetrating a fraud. But in such cases it is not necessary in order to prevent a fraud, to give the contract effect practically by means of an action. The law'accords the injured party full compensation for the value of the consideration he has
The statement in said instruction No. 13 that, “you may consider the value which the decedent and his wife also placed upon the companionship as shown by the evidence, if any, love and affection of the defendant as a child; and you may also take into consideration such
The contract in this case serves to rebut any presumption which might otherwise have obtained that the services were to be gratuitously performed or that they were performed under the mere expectancy that the intestate would leave the plaintiff a legacy.
Under §§521, 523 Burns 1914, §498, 500 R. S. 1881, appellant claims that John S. Hilton, father of the claimant, was not a competent witness, because he was a direct beneficiary of the alleged contract or that he was an agent in the making of it, and that his wife, Elizabeth Hilton, was made incompetent as a witness by §525 Burns 1914, §501 R. S. 1881.
Other questions raised by appellant’s brief question the sufficiency of the evidence to sustain the verdict and as the error in giving instruction No. 13 requires a reversal of the judgment, we deem it unnecessary to discuss them.
Judgment reversed, with instructions to grant a new trial.