Mahan v. Mahan
121 N.W.2d 367
S.D.
1963
Check Treatment

*1 Supp. SDC law. See with state in accord districts school 15.2007(3) set requirements. Board had property as to taxable on an voted The voters tax basis. $5 million up minimum getting basis; half of they about $6.7 tax approved million feasible, e., i. proposed is not district feel that I cannot but that. being successfully with state stand- in accord capable utilized approving small discretion abused its Board and the ards district. Renner, 106 N.W.2d Thies v. court in

This reorganization injunctive dispute be- relief in a school refused right provisions existed under the of SDC of review cause a repeats pronouncement. That same Supp. here 15.2023and Supp. Supp. and another section SDC 1960 15.2023 SDC 1960 Code, 15.2344, majority opinion in the remain both cited scope has now been further limited in effect of review to be but the reorganization efficacy proceedings. practical in school noof MAHAN, MAHAN, Respondent Appellant

(121 367) N.W.2d

(File 1963) Opinion April 25, filed No.

Rehearing denied October *2 Simons, Falls, Vermillion, Dwyer, Blaine Sioux Harold Appellant. Smith, Evans, Falls, Davenport, & for Plaintiff Hurwitz Sioux Respondent. ROBERTS, brought against this action Plaintiff Alice Mahan J. deceased, Mahan, the administrator of the estate of agreements. alleged pre- under oral against sented and filed administrator a claim the estate with the rejected performed for services and the claim brought Upon jury, administrator this action. trial to a judgment $20,958.33, recovered the full amount of *3 the claim. May

Plaintiff and married on Thomas Mahan were and lived the same farm until the death of the husband on September 1953. Plaintiff's husband and his brother had John marriage together years prior for a number of to the lived and operated partnership. the farm made his home continu- John ously marriage with Alice Thomas from and the time of the un- Thomas, til the May death of and thereafter with Alice until alleges promised plaintiff that and her husband John they fully completely compensated board, that "would be and room, laundry personal and services furnished them to the throughout said R. period service, Mahan the entire John such compensation arranged adequately such to the said John R. estate, Mahan so that the same would come from his either sharing the from said Thomas Mahan therein an heir at law or alleges otherwise." Plaintiff also that "after the death of the said Mahan, promise Thomas such was renewed the said R. John Mahan, agreeing promising he then that if the would ** * furnishing board, room, continue laundry long him with do, provide as she was able so to he would for her full and ade- quate compensation payable death, from his estate after his by proceeds policy him, making of a of insurance held her government approximate co-owner of bonds the amount of $10,000, provision whereby in his will she would share in his exactly estate as his brother Thomas Mahan would have shared * * Plaintiff further Mahan had survived

if Thomas the said agree- obligations alleged under fully performed the her that she ments, them fail- Mahan breached plaintiff. ing property to the transfer or devise to alleges answering complaint fails to state that action, present is a de- action claim a cause court, county the claim parture filed with from that family to another and that members of a rendered by plaintiff to de- owed entitled to setoff of a debt defendant cedent. August made without R. Mahan died transferring plaintiff. any property His brother to

a will or surviving him as There were named as administrator. Mike was brother, sisters, only two and the chil- law the heirs at sole deceased brother. dren assignment questions principal of error suf

The elementary It is ficiency the verdict. the evidence to sustain voluntarily accepted are rendered where services thai obligation another, compensation pay will ordinar one County, ily implied Schmidt 271 N.W. 667. v. Clark family one member Where the services relationship may repel the inference of another general pay. rule is that where near relatives reside to *4 gether by family the services rendered one member to as one gratuitous. presumed Murphy Murphy, to 1 be another 820; 142, Annotation, 9 L.R.A. 7 A.L.R.2d 8. The S.D. 47 N.W. plain the brother lived the home of shows family. presump as a member of the The her husband tiff and prevailed. gratuity contends that because of tion of recovery relationship family to sustain had the bur express compensation proving of an contract and cites den Armstrong's Shannon, support of contention Adm'r v. such Hilliard, Ky. Parker v. 106 Colo. 197 S.W. P.2d Simons, Cir., 280 F.663. The nature of a con Cromwell controlling. for services rendered is not to sustain a claim tract Con fact, express, implied pay rendered for services to tracts implied adopted of The latter are fictions the law or law. to grow justice True no true contract exists. where contracts achieve expressed parties. is out of intention of the Where the intention words, implied express. in fact A is the contract contract explicit where the intention to manifested direct or it not gathered implication parties, or words is to be language used, proper parties, deduction from the conduct of the attending them, pertinent or acts done or other circumstances manifesting of the transaction. The difference lies in the manner express implied assent and an contract and one in fact involve legal specific no difference in effect. In the no case bar perform corresponding part promise to services and a of property compensation the decedent to transfer or devise was proved. pertinent inquiry is whether the facts and circum- properly permit stances evaluated an inference services receiving expectance were rendered in of one and the other making compensation. of

This court has said that claims of this nature must be objects scrutinized, being closely suspicion, of and must be estab greater quantum proof ordinary lished of than in actions. In Douglas Beebe, 165, reversing judg 195 N.W. (cid:127) against compensation ment administrator during period claimed have for decedent twenty-five years, this court held that had the burden establishing convincing his claim clear and In evidence. following language

opinion, quoted from White v. Deven dorf, App. courts, uphold Div. 111 N.Y.S. 815: "The before ing agreement kind, which, out, an oral of this if carried will property channels, divert of the decedent from its natural clear, require convincing fact, will it to be proof. established In extraordinary it equity, must a case and sustained un Estate, mistakable evidence." In re Weide's 44 N.W. adversely daugh 2d was decided to the claim of decedent's agreed ter-in-law that decedent had compensate her for nurs ing, housework and food furnished. high degree respecting

For other proof authorities agreements necessary prove parol in actions of a similar na- *5 Farup, 437, ture see Rhode Crilly 293 N.W. v. Mor- 584, ris, Eriksson, 70 S.D. 19 N.W.2d Johnston 799; Annotation, 23 N.W.2d 7 A.L.R. 2d §§ testimony by plaintiff consists of admis relied on made claimed have sions or declarations during keep in mind that is well his lifetime. It R. Mahan allegedly deceased testimony made statements oral regarded evidence. persons weakest kind of as the C.J.S. Kinney Murray, said court Evidence 266. As the § " does, consisting, as it 'The evidence Mo. S.W. subject statements, to much im repetition of oral the mere being mistake; party misin perfection the himself either having himself, formed, clearly expressed witness or the or not happens frequently also that him. It misunderstood altering witness, expressions unintentionally of the few the used, gives completely at vari really to the an effect statement * * * say. actually party When we did with what the ance original inaccuracy upon many witnesses in their the of reflect mingle conversation, liability to comprehension extreme their transaction, original subsequent facts and occurrences with the recollecting precise impossibility the terms used of and the translating equivalents, party, we con- them exact must ihe or testimony.' no reliance this class of clude there is substantial * * *(cid:127) of is fur- 'The weakness of this class insirinsic given length any of in- case time that has ther enhanced made, the declarations were ease with tervened since so, manufactured, temptation to do when it can be and the which " graves.' in their it could be contradicted all those whom Scott, this 255 N.W. made The court in Paris v. Mich. kind, testimony of "In of witnesses cases observation: caution, great of with because of frailties must be viewed language improbability repeating precise memory, deceased, fairly person expressing the full state of mind since change person, a word because mean of such binding expression contract and mere the difference between a of intention." testify. appear depo- court and Her was unable to of the at instance defendant read its en- taken

sition tirety She testified to statements made de- the trial. between him R. Mahan and conversations and her cedent agreement husband, testify they had did not made *6 testimony indefinite compensation. most her indicated At leaving property to a will her. to make intention Robbie, plaintiff principal an attor- was witness Joe ney, represented of her as the administratrix who Alice Mahan plaintiff. He estate and whose wife a niece of husband's a conversation with Mahan at testified that he had John 5, 1954, January Bernard was latter's home which John naming present; that told his him that reason for Thomas making beneficiary policy Mahan of insurance and him co- Savings owner of his United States Bonds because of an "agreement whereby with Tom" he could "live with Tom home"; Alice in their that decedent said that he "wanted agreed arrangements to make the same for Alice that had he Tom"; signed change request made for that decedent for a beneficiary policy of insurance from Thomas to Alice Ma- han; substituting inquired and that decedent about Alice Mahan for her husband as co-owner of the bonds. Mr. was cor- Robbie testimony roborated his Bernard wife is whose a niece John of Alice Mahan. Plaintiff makes her home with the Bernards.

Decedent, again December, 1955, changed beneficiary and made payable the insurance above mentioned his estate. principal No bonds other $500 than one in the sum of were among found the effects of R. Mahan after his death. The promises declarations claimed to have been made were not It produced fulfilled. copy here noted that Mr. Robbie he, December, of a will that handed R. Mahan for provisions, execution. Under its Alice Mahan would have shared equally surviving in decedent's estate with his brothers sisters. This indicates that decedent did not think that had he binding plaintiff contract with and there is no evidence in- that plaintiff upon that dicates expressions relied decedent's of an provide adequately intention to for her will. establishing

Plaintiff had the burden of a contract substantially mutual; as claimed and the contract must that say, is to there must be a clear basis for an inference that de compensate cedent intended and her husband they expected rendered and that remuneration. There is no evidence to indicate performed and her husband promises upon in reliance basis or a contractual the services property to them. devise he transfer or would of decedent *7 981; Kleinberg App., v. Kinealy, McClure 193 S.W. Mo. See Estate, Lenz, W.Va. App. In re Fox' 80 N.E. Ind. Hoffman, 184 Or. Ibach v. S.E.2d 7 A.L.R.2d the verdict. sustain was insufficient to evidence P.2d 266. The convincing es was not clear and contract A definite tablished.

Tudgment reversed. JJ„ BÍLGELMEIER, I., HANSON, concur. P. and RENTTO (dissenting). my J„ HOMEYER, concur with I am unable to colleagues. ex- on the essentials The trial court instructed implied in a case of in fact and that press and a contract contract type clear and con- must be established the contract Douglas Beebe, vincing proof. 195 N.W. 165. required express quantum proof establish an contract considering evidence, lacking, direct and cir- all fact, cumstantial, opinion implied I am of the that a definite, sufficiently can be is established evidence which convincing quantum recovery in clear and meruit said to be jury services rendered should allowed. The so decided for the plaintiff is entitled to the benefit of infer- all reasonable from the evidence all controverted facts have been de- ences in her favor. termined al., Appellants POWER et

OTTER TAIL COMPANY COLMAN, al., Respondents et OF CITY

(121 483) N.W.2d (File May 9, 1963) Opinion No. 9993. filed