23 Or. 530 | Or. | 1893
This is an appeal from a judgment in favor of the claimant, rendered in a proceeding under section 1134 of Hill’s Code, to enforce the claim of Jonathan Morrison against the estate of William McAtee, deceased, for an alleged breach of contract made between plaintiff and deceased, by which the latter agreed to support the former during his life, in consideration of such services as he might be able to render. From the claim as presented to, and rejected by, the executor, and which forms the basis of this proceeding, it appears that in April, 1872, the claimant, who was then sixty-one years of age, entered into an oral agreement with the deceased, whereby it was agreed that the claimant should work for the deceased as a blacksmith and general farm laborer as long as he might live or might be able, and, in consideration thereof, the deceased should support and maintain him during the term of his natural life. In pursuance of this agreement, the claimant entered into the service of the deceased, and continued to work for him without any compensation other than his maintenance and support, performing such labor as he was required and was able to perform, until the twelfth day of November, 1890, when McAtee died, leaving a will, but making no provision for the support and maintenance of the claimant, and his personal representatives have failed and neglected to comply with the contract. As the important question on this appeal arises on the instructions of
1. Before considering the other questions, it is proper to advert briefly to the sufficiency of the assignments of error in the notice of appeal. The following are a sufficient illustration of such assignments for the purposes of this case : “4. The court erred in sustaining the objection of the claimant to the question propounded for the defendant estate to said witness Jonathan Morrison, upon his cross-examination, which question was as follows: ‘Didn’t Mr. McAtee set aside provisions enough to support you and Mrs. McAtee?’” “5. The court erred in overruling the objection of the counsel of the defendant estate to a question asked of said claimant Morrison, which is as follows: ‘I will ask you to state whether you have any means by which you can support yourself other than your claim against this estate?’ and permitting the witness to answer ‘No sir,’ over the objection of the defendant estate. ” “7. The court erred in instructing the jury that ‘where the contract alleged is once shown to exist, the burden of proving that it was abandoned, or that the estate had been released therefrom, is upon the estate before it can be relieved of its liability thereon.’” ‘ ‘ 8. The court erred in instructing the jury, ‘ the measure of damages in this case, if you find 'that the plaintiff should recover, is such sum as would pay for Morrison’s support and maintenance for the time which Morrison would probably live after the death of McAtee as shown by the mortality tables. ’ ” The contention for respondent is that, although the notice of appeal specifies with reas.
2. The charge of the court in this case is made up wholly from requests for instructions by the parties,, and, as is often the fact in such cases, however careful and painstaking the trial judge may be, there is an irreconcilable conflict in the instrutions as given to the jury.
3. If the trial court prefers to give instructions in the form as submitted by counsel, rather than treat such requests as embodying counsels’ views of the law, to be used in the preparation of its charge to the jury, it should be especially careful to harmonize such instructions before giving them. If this is not done, the instruc
4. And further than this, it appears that several of the instructions given at the request of the claimant, were erroneous. Take, for example, the one already set out as to the measure of damages. If, as the evidence tended to show, the claimant, while not able by his work or labor to entirely support himself, was able to do some work which would partly compensate therefor, he would certainly not be entitled to recover as damages the entire amount necessary for his support, with no deduction for his probable earnings. The measure of damages for a breach of a contract of maintenance, as we understand the law, is such a sum as would be a just equivalent for full performance, including prospective as well as past damages: Fales v. Hemmenway, 64 Me. 373; Schell v. Plumb, 55 N. Y. 592; Freeman v. Fogg, 82 Me. 408 (19 Atl Rep. 907). In the case at bar, as the consideration for the contract of maintenance was service by the claimant, the measure of damages for a breach of the contract would be a sum of money which, together with its income at a reasonable rate of interest, and what the claimant could reasonably contribute to his own support by work and labor, would be sufficient to support and maintain him from the time of the breach of the contract during the remainder of his life; and not such a sum as would give him a reasonable and comfortable support during that time, not taking into account his probable earnings.
5. The court also, in another instruction given for the claimant, instructed the jury that the measure of damages “is such a sum as will pay for Morrison’s support and maintenance for that time which Morrison would
As the other alleged errors will probably be obviated on another trial, we shall pass them at this time. Judgment reversed and a new trial ordered.