50 Ind. App. 137 | Ind. Ct. App. | 1912
— This is an action on a claim filed by appellant against the estate of his uncle, Joseph R. Hollingsworth, to recover for services alleged to have been performed for decedent during his illness. Said claim was disallowed by the executrix of the estate, aud placed on the docket of the Henry Circuit Court, where a trial by the court, without the intervention of a jury, resulted in a finding and judgment for appellee.
A motion for a new trial filed by appellant was overruled, and this ruling presents the only error assigned and relied on. This court is asked to reverse the judgment of the court below on the evidence, the sufficiency thereof to sustain the decision being the only ground of the motion for new trial discussed.
This quotation from the testimony of appellant’s father is the substance of all the evidence introduced for the purpose of establishing the alleged contract or agreement. Two or three other witnesses testified substantially to the same language used by decedent, and this evidence was uneontradicted. It was not claimed by any of the witnesses testifying to such language that the same wras used in the presence of appellant, and no definite time, with reference to the services rendered, was fixed by any witness as to when the conversation with decedent was had. The evidence as to the amount of services rendered and their nature is conflicting. According to the testimony of several of the witnesses, who were in a position to see and know, the character and the amount of the services rendered by appellant were such as might have been gratuitously rendered by .any neighbor or friend, especially by a relative, without any thought of or desire for compensation.
Appellant makes his mistake in assuming that the undisputed' evidence shows a contract or agreement under which some services were rendered. While the statement of the decedent, showing his appreciation of the services and an intention to pay for the same, would have justified the court in finding that such services were rendered by appellant under an agreement by which he expected to be, and was entitled to be, paid therefor, such evidence did not necessitate such conclusion, and the court, considering the evidence as a whole, may have concluded that the services actually rendered by appellant were gratuitously rendered, without any present intent of charging for the same, and, in fact, without any knowledge of the expressed intention of. decedent
It cannot be said that there was no evidence to support the decision of the court, and the judgment will, therefore; be affirmed.
Judgment affirmed.
Note. — Reported in 98 N. 14 79. See, also, under (1) 8 Cyc. 362; (2) 18 Cyc. 532, 1029; (3) 3 Cyc. 364. As to the presumption that services rendered by relatives are gratuitous, see 138 Am. St. 250.