Krupp v. Craig

247 Mass. 273 | Mass. | 1924

Pierce, J.

In this case the declaration sets out a cause of action in assumpsit, in a form which was used in this Commonwealth before the practice act was adopted in 1852, and is one which may now be used if the pleader elects to do so. See American Precedents of Declarations (1821), 126. See Raymond v. Eldridge, 111 Mass. 390. The answer of the defendant is a general denial, a plea of payment, and the statute of limitations.

At the close of the evidence the judge, in response to a motion by the defendant that on all the evidence a verdict be directed for him, ruled as follows: “ I am going to grant the motion to direct a verdict for the defendant on both counts — the first count now is waived, I understand. With reference to this motion the court suggests to counsel for the plaintiff that he will be permitted to amend his declaration by including a count for work and labor performed by the plaintiff for the defendant, and unless such an amendment is made at this time the court will direct a verdict for the defendant.” The plaintiff declined to amend “ her declaration according to the suggestion of the court ” and duly excepted to the allowance of the defendant’s motion for a verdict.

The facts which the jury would be warranted in finding in support of the declaration in substance are as follows: The plaintiff is a sister of the defendant. In the year 1915, she resided with her husband and two children in a partly finished five-room house, owned by her husband, on Kendrick Road, Greenwood, Massachusetts. On a Sunday in October, 1915, the defendant came to the house, said that he was out of employment, and asked the plaintiff in the presence of her husband if he could bring his family to stay with her until he received work; and that when he got work he would pay her for whatever he would owe her. The plaintiff consulted her husband and, later the same day, said she would take the defendant and his family. The defendant and his family, consisting of his wife and three children, came to the house of the plaintiff on October 21 or 22, 1915, and stayed there continuously until May 30, 1916. They occupied two out of three bedrooms and shared the rest of the house in common with the plaintiff and her family. The defendant went to work January 11, 1916. He paid the plaintiff $5 each week for the last three weeks of May, 1916. He also paid her in June, 1916, $37, which could have been found to have been paid on account of his indebtedness to her. The plaintiff paid the food bills with money furnished by her husband, who died in 1919.

It was the contention of the defendant that he never made any contract to pay money to the plaintiff for board; that he did not have any conversation with the plaintiff and her husband; that he paid the husband as he had agreed one half of what he earned; that he went to his sister’s house in October, 1914, and left on Decoration Day, 1915; that the money he gave his sister he gave in a money order for about $40, in June, 1917, to relieve her urgent need of money, and not to pay any debt of his to her.

He further testified that he knew he left the house of the plaintiff in 1915, because he took out a policy August 29, 1915, in the Metropolitan Life Insurance Company and the address of that policy is 20 Park Street, Wakefield. He then offered in evidence a policy of insurance in the Metropolitan Life Insurance 'Company, signed by James W. Craig, for the purpose of corroborating his testimony as to where he was living at that time. Subject to the exception by the plaintiff, the policy was admitted in evidence. This exception must be sustained. The policy with its indorsement had no material evidentiary value in the proof of the disputed question of the place of the defendant’s residence in 1915, and was otherwise objectionable as a self-serving declaration. Sargent v. Lord, 232 Mass. 585, and cases cited.

The writ in this action was dated January 11, 1922, which was within six years after the defendant went to work on January 11, 1916, and consequently within six years after the plaintiff’s cause of action accrued. Seward v. Hayden, 150 Mass. 158. At any rate, it was within six years of the payment in June, 1917, which might have been found to have been made on account.

The direction of a verdict for the defendant because in substance the allegations of the declaration are not supported by the proof was error. A married woman when the contract was made with the defendant and performed by the plaintiff had full authority in law to make contracts, oral and written, in the same manner as if she were sole, and all work and labor performed by her for other than her husband and children was, unless there is an express agreement on her part to the contrary, presumed to be on her separate account. St. 1874, c. 184, § 1, now G. L. c. 209, §§ 2, 4. The fact that the husband owned the house and that the food, light, water and interest were paid out of the allowance the plaintiff had every week from him, and that he furnished money to pay for all these things and was willing that the defendant and his family should live under the roof with “ him and me,” were evidence of the agency of the plaintiff for the consideration of the jury, but were not conclusive or as matter of law inconsistent with the claim of an express contract between the plaintiff and defendant. Harmon v. Old Colony Railroad, 165 Mass. 100.

It results that the entry must be

Exceptions sustained.