Kershner v. Henderson, No. 7006

No. 7006 | Wash. | Jan 9, 1908

Fullerton, J.

In this action the respondent sought to recover of the appellant the sum of $1,250, alleged to be the reasonable value of certain services which he claims to have performed for the appellant at the appellant’s special instance and request. The services consisted of waiting upon the appellant for a few days, and acting as caretaker for some two years of certain real estate which the appellant owned, situated in Kitsap county. The answer put in issue the allegations of the complaint, and a trial was had thereon resulting in a verdict and judgment in favor of the respondent for the sum of $1,000.

The evidence tended bo show that the appellant had a stroke of paralysis in the early part of August, 1903, while residing upon the real estate mentioned, and employed the respondent to attend upon him, evidently expecting to recover within a short time. A few days later he suffered from another stroke which left him in a practically helpless condition, whereupon a nephew came from some place in Virginia and took him to an asylum in that state for treatment, leaving the respondent in possession of his home upon the real estate. The respondent continued to reside on the property until some time the next spring, when he presented to a Mr. Keith, the appellant’s counsel, certain demands or bills for services rendered in caring for the real property. These demands were forwarded to the appellant, who replied thereto by saying that the respondent was not in his employ, and directing him to quit and surrender up possession of the place.

There was testimony to the effect, although disputed by the respondent, that this notification and this letter was shown the respondent by Keith. The respondent, however, still continued to reside on the place and later on brought this action as before stated. On the trial of the cause the appellant requested the court to charge the jury to the effect that if they found that appellant did notify the respondent to quit and surrender the premises on receipt of his demand of payment as caretaker for the same, and that this notification was brought to the respondent’s attention, that the respondent could not recover for any services performed as caretaker of the premises after that time. This instruction was refused, and constitutes one of the principal errors assigned.

The instruction should have been given. The contract of employment, if any existed at all, was a contract for an indefinite time, and could be terminated by either party whenever that party so desired by giving notice to the other. The repudiation by the appellant of the respondent’s claim of employment, and the notification given by him to the respondent to quit the premises, was a sufficient notice to terminate the contract, conceding that one existed, whenever it was brought to the respondent’s attention. No formal service of the notice was required. By presenting his demand for payment to the appellant through Keith, the respondent authorized the appellant to reply through the same source, and if he did reply to the effect that the contract was at an end, and this reply was shown the respondent, it was sufficient notice to terminate the contract relation. The respondent’s possession of the premises was wrongful from that time on, and he cannot recover for any services performed thereafter as caretaker.

The appellant stoutly maintains that the respondent’s possession was wrongful from the beginning, and that he cannot recover for any services as caretaker of the premises. But on this question we think there is a substantial dispute in the evidence, and that the question was one for the jury. The other errors assigned merit no special consideration.

For the error noted the judgment is reversed and a new trial is awarded.

Hadley, C. J., Mount, and Crow, JJ., concur.

Dunbar and Root, JJ., took no part.