20 W. Va. 183 | W. Va. | 1882
announced the opinion of the Court:
It now appears, that no paid of the depositions taken by the defendant to prove the items of his account No. 1, filed with his answer as an exhibit, was copied into the record of this ease by the clerk of the court below except so much thereof, as bears upon the items of the defendant’s account No. 2, filed with his answer as an exhibit; that much of the evidence, upon which the commissioner acted in allowing the defendant, Hite, the credits he did in his report, was not copied into the record before us by the said clerk *by direction of counsel, but it seems, that all the papers in the cause and depositions, which were before the commissioner, and upon which he acted in making up each of his reports, wore among the papers of the cause and before the circuit court, when it heard the cause and overruled the exceptions of both parties filed to the commissioner’s second report anci confirmed said report and decreed thereon against the defendant, on the 15th day of April, 1875. It now appears, that since the record before us was made by said clerk, upon which to found the application for this appeal and supersedeas (which was granted), and since said appeal and supersedeas were allowed, all the original papers of this cause on file in
In the case of Lightfoot v. Price, 471. & M. 431, 432, the chancellor said: “I concur in the opinion given by the late judge of this court in the case of Ross v. Pleasants, Shen § Co. and William Anderson, that so much of any payment, as is equal or exceeds the interest, is to be applied to the discharge thereof, and the residue towards discharging the prin
In this ease the statute of limitations did not cease to run against each of the defendant’s offsets respectively, until the time of defendant’s answer and accounts of offset were filed in the cause. Code of W. Va., chapter 126 section 9; Kelly’s Revised Statutes, chapter 154 section 9 and note thereto; Moore v. Luckess’ next of kin, 23 Gratt. 166, 167. Sometimes, what might appear at first view to be an offset, may properly be treated as a payment on a bond, when it appears, that it was agreed by the parties, that it should he a payment. 5 Gratt. 475. See on this subject further, Angel on Limitations (4th edition) § 75, note 2; King v. King 1 Stockt. (H J.) 44. It appears in this case, that about the 1st of January, 1856, the defendant executed lhs bond to said Hannah Hurst for five hundred dollars borrowed money, and this bond together with the three bonds of the defendant to Ferguson in the bill mentioned were in the possession of the said Hannah Hurst at her death, and after her death the plaintiff found them all among the papers of the said Hannah. The plaintiff brought an action at law against the defendant to recover the amount of the said bond for five hundred dollars from the defendant, which the defendant executed to said Hannah Hurst with its interest; and this action at law, I infer from what appears in this case, is still pending. The defendant, in order to prove his accounts filed in this cause, took the deposition of J ames V. Moore who deposes as follows :
“Question by defendant’s attorney- — Do you know of any*195 sendees rendered by Col. Thomas Hite for Miss Hannah Hurst as her agent or otherwise ? If so state it.
“Answer — I frequently have been there and seen Col. Hite’s hands helping her to harvest, thrash and seeding, &c., during busy times; and in the fall of 185 9 I was over at Hite’s house after some seed-wheat; aunt ■ Hannah Hurst’s two wagons were there loading wheat, and I called at her house in company with Col. Hite that evening after coming from his house; and he paid her two hundred dollars in money, and she told the Col. to charge her with the seed-wheat.
“Question by same — State all that took place on the evening, to which you refer in your last answer, between the parties.
“Answer — After the Col. had paid her the two hundred dollars, he remarked to her, that he ought to have that note of liis given to her for five hundred dollars, as he knew it was paid. She remarked, that she knew that note was paid; and the Col. remarked about the two notes of Ferguson’s, that-she claimed as her own notes, that she ought to give up those notes too, or gross receipts, as he wanted to settle up Ferguson’s estate; she told him to charge up those two notes as they were hers, and when it was convenient she would give them up. It was late in the evening. She also said, that any other notes or accounts he had against her he should charge up against her, as she wanted him paid. That is all that took place that night. The Col. remarked that if she wanted any more money she could have it at any time.
Question by same — Was there anything said in this conversation about the amount of the two notes of Ferguson ? If so, what? And did you understand what Ferguson it was that these two notes were given to ?
“Answer — The notes given to Wm. G-. Ferguson; I think the notes were for five hundred dollars each.”
Question by same — Hid you ever hear your aunt, Hannah Hurst, say anything at any other time about her affairs with Col. Thomas Hite ? If so, state what and where.
“Answer — On the same night we were there, the Col. remarked to her something about these notes 'or Ferguson’s business; and she remarked to him, that it was all hers; and the Col. told her that night the impropriety of holding*196 these notes; if anything should happen he might he put to trouble. She told him it was her business, and that she wanted him to go on and attend to her business, as he had been attending to it, and that she wanted him paid for all the trouble he had for attending to her business. The Col. made some remark, but don’t recollect what remark it was, as I was off a good ways. She told him, that none of her relations would attend to it, and that she wanted him to continue as he had heretofore. I was there frequently after that; and her remarks were pretty generally the same, that none of her relations would attend to it. I told her, that I thought she was a little hard on her relations.”
Question by same — Do you know what quantity of seed-wheat Col. ITite let Miss Hannah Ilurst have at the time, to which you have heretofore referred ?
“Answer — I cannot say how much there was. She had two wagons there and they were pretty full. I judge there was 125 or 130 bushels — may be more — and I knew that she spoke that night of sending up for more — enough to sow another field that the Col. advised her that night to put in. 1 think I gave one dollar and fifteen cents a bushel for it that year.”
Question by same — I)o you know whether your aunt, Hannah TIurst, got the other seed wheat that fall of Col. Thomas Hite to seed the field, of which they spoke ?
“Answer — I cannot answer that positively. I knew the field was sowed, and she told him she was going to send for the wheat. It would have taken about thirty bushels to seed that field.”
Question by same — State how long before the death of Miss Hannah Ilurst had you seen Col. Hite’s hands at your aunt Hannah Hurst’s harvesting, threshing, seeding, &e., during busy times, and for what length of time did Col. Thomas Hite so help her ?
“Answer — Dor off and on for the last eight or ton years before her death. She died, I think, in the fall of 1862.”
Question by same — During the period referred to in your last answer have you any knowledge of Col. Thomas Ilite’s horses being employed at any time in the service of your
“Answer — His horses were down helping her thresh wheat, delivering her wheat, and seeding, and I think I have seen them there once or twice helping to haul in hut I won’t be positive about that. Every year I saw them down there for the last six or eight years before her death, and they were there more at the latter part of the time than the first part.”
Question by same — Ho you know of any service rendered by Gol. Thos. Hite for your aunt, Hannah Hurst, in attending to her business; and if so, what do you know on this subject?
“Answer — ITe attended to her business after the death of Wm. 6. 'Ferguson up to her death. Wm. Gr. Ferguson died either in the fall of 1854 or in the spring of 1855. I think it was in the spring of 1855.
From the evidence of said Moore in connection with other facts it seems to me, that it may be properly considered under his answers to the first two questions, that the two hundred dollars, paid by defendant to said Hannah by said Hite was paid by him on the bond for five hundred dollars, which he had executed to her, for which the action at law is pending; and that it was considered by tlie’parties at the time, that the wheat of which said Moore speaks together with the other items charged in the defendant’s said account exhibit Ho. 1 filed by him with his answer preceding the charge of two hundred dollars cash, the ninth item in said account commencing with the charge of forty-seven dollars and thirty-five cents, paid the said bond for five hundred dollars executed to said Hannah. It may be seen by reference to said account, that the first nine items thereof in the aggregate amount to the sum of five hundred and forty-six dollars and twenty-four cents which is in the neighborhood of the amount of said bond at the date of said charge of two hundred dollars, which is the 26th day of October, 1859. Moore in the last part of his first answer says: “He (Hite) paid her (Hannah) two hundred dollars in money, and she told the Colonel to charge her with the seed-wheat.” In his second answer he says: “After the Colonel had paid her the two hundred dollars he remarked to her that lie ought to have that note of his given to her for
Considering the said first nine items oí defendant’s said account Ho. 1 as being proven before the commissioner as correct charges against the estate of said Hannah deceased I do not consider, that they áre or should be applied as payments on or offsets against any of the said three bonds given by the defendant to said Win. G. Ferguson, because it seems to me, that said Hannah and said Hite in the fall of 1859, appropriated them to the said bond for five hundred dollars given by said Hite to said Hannah in payment thereof, and that said Hannah at that time acknowledged, that said last uamed five hundred dollars bond was paid or thereabouts by said nine items considering them about equal in amount to said bond for five hundred dollars to her, at that time. If these said nine items are allowed to the defendant in this suit as payments or offsets against the bonds executed by the defendant to said W. G. Ferguson in the bill mentioned, the effect would be to appropriate these items differently, as I think, from what the said Hannah and defendant appropri
It is true, that witness Moore says, in substance, that when said Hannah remarked, that she knew the defendant’s note for five hundred dollars executed to her was paid, the defendant remarked to said Hannah about the two notes of "Ferguson, which she claims as her own notes; that she ought to give up those two notes or a gross receipt, as he wanted to settle up Ferguson’s estate, and she told him to charge up these notes, as they were hers, and when it was convenient she would give them up. It must- be remembered, that the • defendant in his answer admits in effect, that said Hannah was in fact at least the rightful equitable owner of said two bonds for five-hundred dollars each given by defendant to said Ferguson at the time, when they were executed; that the consideration, for which they were given, was her property; and that they were executed to said Ferguson, only because he was her agent and so acting and frequently transacted her business in that way. The bond for one thousand dollars the defendant in his answer says, was given to said Ferguson for money received of him. The defendant in his answer further says: “He denies, that he ever delivered to Miss Hannah Hurst the bonds named in the bill executed by respondent to "Win. G. Ferguson in satisfaction pro tanto of her legacy or in any other way. On the contrary, none of said bonds ever came into the possession of your respondent at the death of said Wm. G. Ferguson or immediately thereafter. They were in the possession of ITanuah Hurst, who claimed, that all three of them properly belonged to her and ought to have been executed to her, and she refused to give them up to your respondent as administrator of Wm. G. Ferguson deceased. Your respondent was himself aware, that her claim, so far as the two bonds for five hundred dollars went, was well founded.”
With the aid of these admissions of the defendant the substantial meaning of the said conversation deposed to by said
It seems that between the 15th day of -July, 1855, and the time of the said conversation the defendant had paid out of his own funds several hundred dollars in settlement of the debts and liabilities of the estate of said Ferguson, deceased, and as he had delivered to said Hannah the personal property of said Ferguson received by defendant as administrator as aforesaid, he was entitled to be reimbursed by said ITannali for the money so paid out of said bond for one thousand dol-thousand dollars or otherwise; and the defendant at the close of his said answer says: “ Your respondent is willing and desirous of settling his account as administrator with the will annexed of ’Wm. G-. Ferguson, deceased, and after there shall have been allowed him as a credit on said bond, for one thousand dollars, the amount due him on such settlement, he is willing to pay the balance, if anything, which may be due on said bonds. The amount paid by defendant out of his own funds in settlement of the debts and liabilities of the estate of said Ferguson,
This action was pending on the 1st day of April, 1869, when the Code of this State of 1868 took effect; and in computing the time the statute of limitations runs against said nine items or any of them treating them as offsets in this suit the time between the 17th day of April, 1861, and the first day of March, 1865, that is three years, ten months and fourteen days must be counted out, which operates in effect an extension of the statute of limitations of five years to the period of eight years, ten months and fourteen days; and applying the statute of limitations thus extended to these nine items as charged in said account Ho. 1 several of said items, as charged in said account, were barred at the time defendant filed his answer and accounts of offset; and the part of said items so barred should have been excluded from his said second report for that cause, if no other, so far as I can now sec. I therefore am of opinion, that the circuit court erred in confirming the said second report of said Commissioner Moore, in so far as he allowed the defendant credit for said first nine items in defendant’s said account Ho. 1 and interest on said credits in his said second report as against the three bonds or any of the three bonds of the defendant, in the bills mentioned.
The said nine items and interest as allowed the defendant, in his said second report are as follows, viz :
1858, March 28 — By amount of balance account rendered .§ 47 35
Interest to October 1, 1874.1. 46 62
April 30 — By amount paid McIntyre (clover seed). 30 00
Interest to October 1, 1874. 29 55
April 30 — By amount paid J. P. Brown, insurance. 29 34
Interest to October i, 1874....,. 28 88
1859 — By amount of Smith’s account. 6 60
Interest to October 1, 1874 . 6 14
April 30 — By amount paid J. P. Brown, insurance. 29 34
Interest to October, 1874. 27 13
1859, May 3 — By mares to horse. 18 00
Interest to October 1, 1874. 16 68
*202 October 1 — 161 bushels wheat. 184 11
Interest to October 1, 1874 . 165 60
26 — By amount Sudclith’s bill. 1 50
Interest to October 1, 1874. 1 33
By cash. 200 00
Interest to October 1, 1874. 179 14
These items the circuit court should have disallowed as being credits or offsets in this case as against the said three bonds of the defendant in the bill mentioned, although they are applicable as aforesaid to the said bond of live hundred dollars of the defendant to the said Hannah, upon which said action at law is pending by the plaintiff’ against the defendant, they having been appropriated to said last named bond by the said Hannah and the defendant during the life of the said Hannah. The commissioner’s said second report as to all other items of credit, which it allows the defendant, is correct, including the items of credit, which he allows the defendant upon his account against the estate of W. Gt. Ferguson.
I now proceed to consider the exceptions of the defendant to the commissioner’s said second report for rejecting the defendant’s said account No. 2 against the estate of said Hannah Hurst, deceased. It is argued and claimed by the counsel for the appellee, that the commissioner and the circuit court did not err in this respect, because first, the services charged in that account so far as proved were rendered as a gratuity;, and second, because the charges for services contained in said account are excessive and arc not justified by the evidence; and third, because a large part of the account was barred by the statute' of limitation, extended as aforesaid at the commencement of this suit.
It appears, that the said ¥m. (I. Ferguson died at Miss Hurst’s house sometime in the early part of the year 1855, and shortly prior to the commencement of said account. Joshua Ferguson in his deposition taken by the plaintiff, testifies in substance, that he had had frequent conversations with the defendant respecting the business of said Hannah Hurst; that defendant said he had done and would continue to do all he could for her as a friend; and that from the friendship and intimacy, which had existed between him and the Hurst family for many years, he could not do too much
Lucy S. Wysoug, another witness, for the plaintiff in her deposition testifies, that in September, after the close of the war, the defendant spent the day at her house; and that at that time he spoke of Hannah Hurst’s death and will; and he said the many little favors he had conferred on her were in gratitude for the many favors conferred on him by her father, which had made him what he was; and then said he did not
It appeal's that on the twenty-eighth or thirty-first day of March, 1858, the said Hannah Hurst and defendant, had a settlement of accounts and at that time there was duo on the accounts settled forty-seven dollars and thirty-five cents, which is the first item charged in defendant’s account Ho. 1. It does not distinctly appear whether this was intended by the parties as a settlement of all their open accounts up to that day or not, but I think it does appear that the defendant’s present claim for services was not included in. the settlement or mentioned therein as a claim, but it does appear that said settlement embraced nothing but simple accounts. The defendant’s account Ho. 2 for services commences in May 1856 and up to May 1858 he has charged in said account seven hundred and fifty dollars.
In Chitty on Contracts (6th Am. ed.) 542 it is said that “where it is expressly agreed between the parties that the work shall be' gratuitously done, the contract is nudum factum and the party undertaking to execute the work is not bound to enter upon and perform it; though he becomes liable, if having actually proceeded on the employment, he bo guilty of any misfeasance in the course thereof, to the injury of the other.” Mr. Chitty at same page and page 542, says: “An action can not be maintained for services performed with a view to a legacy, and not in expectation of a reward in the nature of a debt. And if a father-in-law educate and maintain his infant son-in-law obviously from mere kindness by way of gratuity he can not support a claim to remuneration when the child obtains his full age.”
In the case of Newell v. Keith 11 Vt. it was held, according to Mr. Chitty 542 that, “if personal services be rendered by one person for another, at the request of the latter, an action will lie for them, unless it appears from the whole evidence
In the ease of Harshberger’s adm’r et als., v. Alger and wife et als., 31 Gratt. 52, it was held according to the syllabus, as follows: “7. In this case there having been no express contract found, and so far as appears, no claim or mention of such compensation by either the mother or daughter during the mother’s life, and the services having been such as any child, prompted by filial affection and impelled by a sense of duty, might be expected, under the circumstances, to render cheerfully to an aged mother, a contract can not be implied; and A can not recover.”
In the case of Armstrong’s heirs v. Walkup et als., 9 Gratt. 372, it was held: “A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and in fact kept no account against them.” Judge Samuels in delivering the opinion of the court at pp. 375-6 says: “There is proof in the record tending to show that Armstrong did so promise; yet as he was under no previous obligation to support and educate them at his own expense, a promise to do so was made without consideration, and would not be binding upon him. The office he held made it his duty to take care of the persons and property of his wards, and to provide for their support and education out of the profits of their est'ate. A mere promise to persons having no authority to contract on the subject, and for no consideration, does not affect the rights of the guardian to have compensation. Hooper v. Royster, 1 Munf. 119.”
In the case of Rea’s adm’r v. Trotter Bro., 26 Gratt. 585, the third section of the syllabus is as follows: “T. stores goods with R.; and nothing is said as to tlfe compensation, which 11. is to receive for their storage. The law implies a contract that It. shall be paid a reasonable compensation therefor, unless there be something in the relation of the parties or the circumstances of the case which precludes the idea of such compensation, in which case there would be an implied agreement or understandinding that no such compensation was to be paid.” In this case Judge Moncure in delivering
I think Judge Moncure states the law correctly. It appears that Hannah Hurst died in September, 1862. The defendant is not a competent witness to testify in this case, as it stands, in his own behalf as-to any transaction or communication had personally with the plaintiff’s intestate. Code of 1868 chap. 130, sec. 23, paragraph II. Hoither is he competent under said twenty-third section to testify in his own behali as to his work and labor or services rendered for Hannah Hurst, deceased, or what things he did in and about, the services he claims in his said accounts to have performed for the said Hannah Hurst in her lifetime, or to testify, as to any contract or agreement made by him with said decedent in relation to said services or the value thereof, or as to payment therefor or how it was to be paid, or in relation to the bonds in the bill mentioned, or as to any matter or thing relating thereto or material to the cause, or as to any conversation or contracts had or made by him personally with said Hannah Hurst deceased. Owens v. Owen’s administrator, 14 W. Va. 88; Calwell v. Prindle’s adm’r. et al., 11 W. Va. 307; French v. French 14 W. Va. 458.
Under the said twenty-third section of said chapter 130 and the principles decided in said cases, as this case is presented, the most material parts of defendant’s deposition filed in this cause must be excluded, and cannot be read as evidence; but that part of the same, in which he contradicts the statements, of Mrs. AYysong in relation to a conversation of the defendant had with her or in her presence, is proper to be read. But after excluding the parts of the. defendant’s deposition.
*208 May, 1860 — For services, &c., from May, 1859, to May, 1800.8250 00
May, 1861 — For services from May, 1860, to May, 1861. 250 00
May, 1862 — For services from May, 1861, to May, 1862 250 00
And I think the commissioner and the circuit court erred in refusing to allow the defendant the said last named items of his said account No. 2 as offsets to said three bonds in the hill mentioned; hut I do not think, that the commissioner or the circuit court erred in rejecting the other items of defendant’s said account No. 2, filed with his answer in this cause. The last item of the defendant’s said account No. 2, which is one hundred dollars; is disallowed upon the evidence of Edward E. Spaw chiefly.
I have now considered all the questions in this case, which I deem material or necessary. By reason of the defective condition of the record owing to causes, which I have here-inbefore referred to, I have had great difficulty, and have been compelled to spend much time in arriving at a satisfactory conclusion in this case. It is not improbable, that the conclusions, to which I have arrived, will not do exact justice between the parties; but, I think, they approximate it as nearly as may be under the circumstances.
For the foregoing reasons there is error in the decree of the circuit court of the county of Jefferson, rendered in this cause on the 15th day of April, 1875; and the same must therefore be reversed, set aside and annulled; and the appellee, William H. Travers, administrator, with the will annexed of Hannah Hurst deceased, must pay out of the assets in his hands to be administered to the appellant his costs about the prosecution of his appeal and supersedeas in this Court. And this Court proceeding to render such decree in the cause, as the said circuit court of the county of Jefferson should have rendered, it is adjudged, ordered and decreed, that the exceptions of the plaintiff filed to the second report of Commissioner Cleon Moore made in this cause be in part sustained and in part overruled, and that the exceptions filed by the defendant to the said report be also sustained in part and in part overruled. And it is further adjudged, ordered and decreed, that the said report of said commissioner be disaffirmed as to the first nine principal
It is further adjudged, ordered and decreed, that the defendant be allowed credit by way of offset in this cause for the fifth, sixth and seventh items in his account Exhibit No. 2, filed in this cause, as charged therein, as against the throe bonds executed by the defendant to Wm. G. Ferguson; and that all the other items of the defendant’s said account No. 2, filed with his said answer be rejected and disallowed. It is further adjudged, ordered and decreed, that this cause be remanded to the circuit court of the county of Jefferson with instructions to the said circuit court fo recommit the said second report to one of its commissioners with instructions to said commissioner to restate the accounts in said report stated, excluding therefrom the said first nine items of credits or offsets and interest thereon, credited and allowed the defendant in said report; and that he allow the defendant all the other principal items of credit as off-sets, which are allowed or credited the defendant in said report with interest from the time allowed in said second report against the said three bonds executed by the defendant to Wm. G. Ferguson in the hill mentioned, treating each of said last named principal items in said report mentioned as being proved, including the principal items of the account of the defendant with the estate of Wm. G. Ferguson, deceased, as reported by said Commissioner Moore in his said second report; and that such commissioner, in addition to allowing the defendant all the principal items of credit and interest as aforesaid by
Decree Reversed. Cause Remanded.