188 S.W. 970 | Tex. App. | 1916
This is a suit for $720, alleged to be due appellee for services as a nurse for C. B. Anderson, deceased, against appellant, as administrator of the estate of said Anderson. The cause was submitted to a jury on special issues, and upon the answers the *971 court rendered a judgment for appellee for the full amount of her claim.
This suit is on a claim alleged to have arisen on an express contract on the part of C. B. Anderson, deceased, to pay appellee the sum of $30 a month for nursing him from July, 1911, to September, 1913. Anderson died on August 29, 1914, and the claim must depend upon an oral agreement alleged to have been made prior to July 5, 1911, and before appellee moved into the home of deceased. No effort, it seems, was ever made to obtain any evidence in writing of the alleged contract, and its existence must rest upon the evidence of close friends and relatives of appellee.
The allegation of the petition is that the contract was made on or about July 5, 1911, and that she was to begin her services on July 6, 1911. The proof showed that she and her brother moved into the house of deceased immediately after the contract was made, and although deceased had agreed to pay appellee $30 or $35 a month, rent was charged and collected at the rate, first of $7 and then at $9 a month for the use of the house of deceased, and that rent was paid; no effort being made to offset it against the amounts becoming due from month to month for services of the nurse. It was testified that these services were to be continued during the lifetime of deceased, and yet appellee left him, to take care of her mother, for nearly a year before his death. Dr. Anderson, it appears, had a man employed to take care of him during the nights for seven months in each of the years that appellee claimed she nursed him. She was all the time acting as housekeeper for her brother and nephew. The evidence showed that Dr. Anderson went to town by himself almost every day. The evidence of Keeton, brother of appellee, showed that, if a contract was made, it was before appellee moved into the house of deceased, and that the contract was that "he would pay her well to take care of him." That evidence did not establish a contract for $30 a month, which was alleged in the petition.
The testimony of Mrs. P. E. Borger was that the contract was that deceased would give her $30 or $35 a month, and that it was made before appellee moved into the house. On cross-examination she contradicted that statement and stated positively:
"He didn't state at any time how much he would pay her, or for what length of time he was going to pay her, or how long he expected her to do anything, nor she didn't say how long she would stay there, one year or ten years, one month or ten months."
She afterwards stated that the agreement was not to pay appellee any money, but to give her the property after his death. Upon such testimony the estate of a man whose lips were closed in death was held liable. The evidence is too uncertain to sustain the verdict to the effect that an express contract was made to pay appellee a certain sum every month for the period alleged. The evidence tends more strongly to show an implied than an express contract.
We are of the opinion that if the evidence had been amply sufficient to establish an express contract to pay $30 a month for services, that the amount became due at the end of each month, and the statute of limitations of two years would begin to run against each monthly sum from the time it became due. City of Paris v. Cabiness,
We hold that the evidence is not sufficient to establish the contract alleged in the petition, and the verdict is manifestly against the great weight of the testimony. Willis v. Lewis,
*972The judgment is reversed, and the cause remanded.