49 Ind. App. 71 | Ind. Ct. App. | 1911
Appellant brought this action against appellee to recover for services as his housekeeper and for money expended in furnishing him with food and provisions. Issues were joined, the cause was submitted to the court without the intervention of a jury, and upon request the court made a special finding of facts and stated its. conclusions of law thereon, which were in favor of appellee. Prom the judgment rendered thereon this appeal was taken, and the only error relied on for reversal is that the court erred in its conclusions of law.
The court found that on June 13, 1906, appellee, a widower, sixty-five years old was living alone in his home in the
‘! This agreement, made ' and entered into this 13th day of June, 1906, by and between John Ostendorf and Mary J. Mug, both of the city of LaPayette, Indiana, witnesseth: That whereas, said Ostendorf, who is a widower and getting along in years, and has no housekeeper, is anxious to get said Mary J. Mug, who is his niece, to act as his housekeeper, and said Mary J. Mug has consented to act as such housekeeper, now it is agreed between them as follows: -Said Mary J. Mug and her brother, John T. Mug, are to move into the house owned by said John Ostendorf, and which is situate on the following described real estate in Tippecanoe county, Indiana, and is described as follows, to wit: [Then follows description of the property, consisting of four lots in LaPayette.] Said Mary J. Mug agrees to keep house for said Ostendorf and cook for him, and to take care of him if he should become sick and unable to care for himself, and for such housekeeping, cooking and care she is to make no charge. In consideration of such housekeeping, cooking and care bestowed upon him by his said niece, said Ostendorf agrees that said Mary J. Mug shall occupy said real estate hereinbefore described and the house thereon situate for and during the term of her natural life, free from all rent, taxes or other charges while said Ostendorf lives, and further agrees that he will, contemporaneously with this agreement, make his will, and, in said will, will devise said real estate to said Mary J. Mug for and during the term of her natural life. Said Mary J. Mug, during the lifetime -of said Ostendorf, shall have such fruit and vegetables as are grown on said real estate as she may desire to use in and about said house, and for putting up for use of the family. In case said Mary J. Mug should move away from said house and cease to keep house for said Ostendorf, then this agreement shall be null and void.” (Signatures and acknowledgment omitted.)
The court also found that on said date the appellee, in compliance with the aforesaid contract, made and executed his last will and testament, which contained the following:
*74 “Item 4. I give and devise to my niece, Mary J. Mug, the described real estate situate in Tippecanoe county, State of Indiana, to wit, [Here follows description of property, being the same description as contained in the contract before set out.] to be held, used and enjoyed by her for and during the term of her natural life. ’ ’
The court further found that appellant left her own home and went to the home of appellee, where she entered upon the discharge of her duties under said written contract ; that she kept and performed all and singular the conditions, stipulations and provisions of said written contract on her part to be performed from the date of said contract continuously up to May 6, 1908; that nothing in her conduct or the manner in which she performed her work was objectionable to appellee; that during the time appellant remained in said Ostendorf’s home, engaged in the performance of her duties under said contract, he treated her in a cruel and inhuman manner, in this: that he frequently cursed and swore at her without any cause or provocation on her part; that he frequently became intoxicated, and while using intoxicating liquors was cross, vulgar and indecent in and about the home; that appellant did not know that he was addicted to the use of intoxicating spirits prior to the execution of said written contract; that on April 25, 1908, appellee, without cause or provocation on the part of appellant, called her a liar, and ordered her to leave his home; that in compliance with his demands and on account of his cruel and inhuman treatment of her, she left his home on May 6, 1908; that she was ready and willing at all times to keep and perform her part of said written contract with appellee, and did keep and perform it so long as allowed and permitted to do so by him; that she was the niece of appellee; that she was an unmarried woman, forty-six years of age, strong physically, had good health, and was able to perform the work that she agreed to do under the contract; that in carrying out her contract and during
The first paragraph of the complaint alleges generally all the facts relating to the execution of the contract, the making of the will, the rendition of the services, the cruel treatment of appellant by appellee, and the fact that he had ordered her to leave his home; that he had violated his contract (1) by destroying his last will and testament, (2) by his cruel treatment of appellant, and (3) by forcing her to leave his home.
The second paragraph was upon a common count for labor performed and provisions furnished at the special instance and request of appellee.
It is beyond dispute that, under the implied obligations of the agreement between appellant and appellee, each was entitled to receive from the other reasonably kind and respectable treatment.
The contract is an entirety, and its obligations mutual and reciprocal. Appellant was entitled to the continuing benefit of living in the house, rent free, and of being accorded reasonably kind and courteous treatment from the appellee, in addition to a life estate in the property. 3 Page, Contracts §§1487, 1488; Gwynne v. Ramsey (1884), 92 Ind. 414, 421.
To show a breach of the contract giving a right of action in her favor, appellant is not required to show that appellee violated all the obligations assumed by him under the contract, but it is sufficient to' show that he wrongfully deprived her of some of the substantial and material benefits secured
In the case of Doddridge v. Doddridge (1900), 24 Ind. App. 60, this court had under consideration a case where a man, in writing, agreed that for the services of a housekeeper he would convey to her certain real estate, and bound Ids heirs, executors and administrators to do so in case he died without making the conveyance. After his death without making such conveyance, his heirs brought suit to quiet their title to the real estate covered by the contract,
In discussing the case, Eobinson, J., said: “Upon the filing of the suit to quiet title by the heirs and devisees of the decedent, appellee had then the right to ask a decree for a specific performance of the contract made by decedent, or she might sue for damages accruing from a breach of contract, or she might treat the contract as abandoned, and sue for the value of her services.”
In the case of French v, Cunningham, (1898), 149 Ind. 632, our Supreme Court had under consideration the proposition that where an express contract has been made and violated, but work has been done under it, and the defaulting party has received a benefit therefrom, the measure of damages is not the value of the services rendered, but the benefit which the other party has received. The court by Monks, J., said: ‘ ‘ This rule, however, does not apply if the party doing the work has been prevented from completing it by the other party, in violation of the contract. When the person employed is doing the work according to contract, and is prevented from completing the same by the other party, in violation of the terms of said contract, the person so prevented from performing his part of the contract can recover the reasonable value of his work, not exceeding, however, the contract price, on the quantum meruit, or he may sue upon the contract for the breach thereof, and the measure of damages is the amount that will compensate him, which will include the reasonable value of his work, as well as his loss, if any, on account of not being allowed to complete the same. ’ ’
The principle heretofore announced has been approved and applied in eases involving the breach of various lands of contracts. Cleveland, etc., R. Co. v. Moore (1908), 170 Ind. 328; Cleveland, etc., R. Co. v. Scott (1907), 39 Ind. App. 420; Richardson v. Eagle Machine Works (1881), 78 Ind.
Appellant’s suit is upon the qmntum meruit in both paragraphs of her complaint. While the contract and will are set out in the first paragraph of the complaint, it is averred that the contract was broken by appellee; that appellant fully performed her part of the contract until appellee made it impossible for her to continue her services; that she furnished the food for his table and paid for it with her own money; that her services were of the value of $5 a week; that she received nothing for the provisions furnished or services rendered; that demand was made therefor before this suit was brought and payment was refused; that the sum of $1,440 is due to her and unpaid, for which she demanded judgment.
Both paragraphs clearly show an election by appellant to treat the contract as abrogated by appellee’s breach, and to seek a recovery upon the quantum meruit for the money expended and services rendered by her in pursuance of the contract. This she clearly had the right to do, and when she so elected, the contract was at an’ end except for one purpose. It is the policy of- the law that a profit shall not be made out of the breach of a contract, but that a person not in default shall be made whole, on the principle of indemnity, and for this reason,,notwithstanding the right of the person to elect his remedy after breach by the other party, his damages, upon suit for breach or upon quantum meruit for services rendered and expenses incurred before breach, are not permitted to exceed the amount stipulated in the contract, when ascertainable from the evidence under the issues of the case. Cleveland, etc., R. Co. v. Moore, supra, at page 342; Fulton v. Heffelfinger (1899), 23 Ind. App. 104; 22 Ency. Pl. and Pr. 1370.
This then is the sum due to appellant, unless it exceeds the amount due to her under the original agreement. The consideration moving to appellant under the contract is the joint use of the property with appellee during his lifetime, and the life estate therein after his death.
6. The courts take judicial knowledge of the "American,” the "Carlisle,” and similar well-known, properly-authenticated standard tables of mortality, and of their contents. Shover v. Myrick (1892), 4 Ind. App. 7, 16; Louisville, etc., R. Co. v. Miller (1895), 141 Ind. 533, 563; Lincoln v. Power (1894), 151 U. S. 436, 441, 14 Sup. Ct. 387, 38 L. Ed. 224; Gordon, Rankin & Co. v. Tweedy (1883), 74 Ala. 232, 237, 49 Am. Rep. 813; Kansas City, etc., R. Co. v. Phillips (1893), 98 Ala. 159, 168, 13 South. 65; 20 Am. and Eng. Ency. Law (2d ed.) 883 et seq.
These tables, and the calculations based thereon, may be used by the courts in ascertaining the value of life estates. Henry, Probate Law 1168; McHenry v. Yokum (1862), 27 Ill. 160; The D. S. Gregory and The George Washington (1868), 2 Ben. 226, Fed. Cas. No. 4,100; The Washington and The Gregory (1869), 9 Wall. 513, 19 L. Ed. 787; Atchison, etc., R. Co. v. Ryan (1901), 62 Kan. 682, 690, 64 Pac. 603; Kreuger v. Sylvester (1897), 100 Iowa 647, 653, 69 N. W. 1059; Vicksburg, etc., R. Co. v. Putnam (1886), 118 U. S. 545, 554, 7 Sup. Ct. 1, 30 L. Ed. 257; Mills v. Catlin (1849), 22 Vt. 98, 107.
In the case of Doolittle v. McCullough (1861), 12 Ohio St. 360, the court declared the right to maintain an action for a breach of a contract in harmony with the doctrine as declared in this State, and that decision was referred to as “the leading case” by our Supreme Court, in Cleveland, etc., R. Co. v. Moore, supra, on page 342, in speaking of the measure of damages where the suit is upon the qtiantum meruit.
In the case of Doolittle v. McCullough, supra, on page 366, after speaking of the plaintiff’s right to elect his remedy, the court said: “The only difference would be, that if the action were commenced upon the expressed contract, the plaintiff might have to prove the terms of the contract, and the rendering of the services according to its terms; whereas, if the action wore in general assumpsit the plaintiff would only be required to prove the fact of having rendered the services at the instance of the defendant, and the value of the services; and it would then be incumbent upon the defendants to prove the special contract, to take the case out of the implied contract. ’ ’
This precise question has not heretofore been raised, or the rule declared, in Indiana, so far as we are able to ascertain, but the principle involved has been applied generally as a rule of practice.
In support of the rule before declared, see, also, 22 Ency. Pl. and Pr. 1371, Perkins v. Hart (1826), 11 Wheat. *237,
Appellant proved her ease according to her complaint, and the court found the facts accordingly. Proof of the contract and of a breach thereof, warranting her to treat it as abrogated and to elect her remedy, was duly made, and the facts are so found by the court. The contract does not in terms fix appellant’s compensation thereunder so as to be available as proof limiting the amount of her recovery without additional proof. The burden of furnishing such proof and procuring the finding of such facts rests upon appellee, and his failure to make out his defense cannot affect appellant’s right to a recovery.
The judgment is therefore reversed, with instructions to the lower court to restate its conclusions of law in favor of appellant and to render judgment in her favor as of the date of the original judgment, for the amount found to have been due to her at that time, in the sum of $1,177.50.