22 Colo. App. 293 | Colo. Ct. App. | 1912
This appeal is prosecuted from, a judgment of the district court in favor of appellee, plaintiff or claimant below, based upon a claim which she filed in the probate court against the estate of Samuel B. Norton for services rendered the said Norton during his lifetime.
The following are the facts which are either conceded or not disputed seriously: In.1897, Dr. Samuel B. Norton, then residing in this city, wrote several letters to appellee, who was then residing in Chicago, urging her to come to Denver and make her home with him, for the purpose of taking care of him in his declining years, he then having reached an advanced age, and being at the time also in ill health. Appellee was a niece of Dr. Norton, and at that time unmarried, her maiden name being Bose A. Wheeler. After receiving three urgent letters from her uncle, appellee came on from Chicago to Denver. It appears that no definite arrangement had been made as to her compensation prior to her arrival here. Shortly after appellee’s arrival, her uncle stated to her that if she would take care of him in his declining years he would in some way convey to her a house and lot in North Denver, which the doctor then owned. There is nothing in the record which shows specifically that Miss Wheeler ac
Appellant’s contentions are:
(a) That the action of the county court in granting the motion for judgment as of non-suit interposed by the estate at the conclusion of the claimant’s testimony at the hearing on the first claim, and the action of the district court in thereafter dismissing the appeal from the county court (not having been taken to the supreme court for review) constituted a final adjudication of plaintiff’s rights to l'ecover, at least for all services rendered prior to her marriage.
(b) That whatever services plaintiff rendered Dr. Norton were performed under a specific contract whereby she was to receive, by will, the North Denver property, providing she remained with and cared for him until the time of his death. Therefore, having voluntarily quit his employ, she thereby violated or abandoned the contract, and may not recover, any thing whatever for such services as she did render.
(c) That if plaintiff is entitled to recover, quantum meruit is not her remedy, and she can only recover in an action either for specific performance, or in an action on the contract for damages, in which her measure of'damages would be the value of the North Denver property.
(d) That claimant’s claim is barred by the statute of limitations, appellant’s contention on this point being that whatever right, if any, claimant had to recover for services rendered prior to her marriage, accrued at the time of her marriage, January 15, 1902. Therefore, the appellant says that the sec
1. It will he seen that the facts in this case and those under consideration in Tucker v. Tucker, recently decided by this court, and reported in 121 Pac., 125, and, in many respects, strikingly similar.
As to the plea of res adjudicate,, it will be remembered that the first claim was disposed of in the county court by granting a motion for a non-suit interposed by the -estate at the conclusion of claimant’s testimony, and without any proof having been offered by the estate. Such a judgment is not res adjudicate upon’the merits and cannot be plead as a bar to another suit upon the same cause of action by the same parties.
D. & R. G. R. Co. v. Iles, 25 Colo., 19. Hallack v. Loft, 19 Colo., 80. Russell v. Rolfe, 50 Ala., 56.
In the latter case it is said.
“A non-suit is no bar to another action for the same cause unless made so by statute.”
Our statutes not only have not made a non-suit a bar to another action, but on the contrary, sections 183 and 184 of our code (R. S. 1908), plainly indicate a contrary intention. The non-suit in the case now under consideration, was granted under the fifth subdivision of section 183, which reads as follows :
“An action may be dismissed or a judgment of non-suit entered in the following cases * * * Fifth — by the court upon the motion of the defendant when upon the trial the plaintiff fails to prove sufficient case for the jury. ’ ’
Section 384 reads:
*300 “In every case other than those mentioned in the last section, the judgment shall be rendered upon the merits.”
In Wood v. Ramond, 42 Calif., 145, it is said:
"A non-suit claimed on the motion of the defendant is equivalent in its operation on the action, to a dismissal with the consent of the defendant.”
From the above authorities it would seem clear that appellant is not in a position to invoke the doctrine of res adjudicata.
2. The second contention of appellant will next be considered. We are not disposed to think that the record warrants the conclusion that there was a hard and fast contract entered into between the claimant and Dr. Norton, whereby he was to give, and she was to receive, as full compensation for her services, the North Denver property. In the case of Porter v. Dunn, 131 N. Y. Court of Appeals, 314, a situation strikingly similar to that here under consideration was before the court. The conclusion reached in that case strongly supports our views that there was no contract made in this case, and that the statements of Doctor Norton at or about the time the claimant entered upon her. duties, of his intention to remember her in his will, or to convey a certain piece of property to her, does not foreclose or bar her right to maintain this action for the value of her services. We shall not prolong this opinion by any lengthy quotations from the New York case, but content ourselves with the following:
“He (the deceased) may have spoken in good faith, while Mrs. Porter listened and believed and probably hoped; but where are the elements of any agreement, or how does the promise of a testator’s*301 gift, not performed, operate to restrict the plaintiff’s right to recover for the value of his wife’s services (the husband brought the suit) and how can such promise tend to prove or affect the reasonable value of the services after the same have been rendered? I do not think that any inference can be drawn from the fact of a promised gift by will, except that of a purpose to enlist and retain the services of the wife and the attention of the family. ’ ’
It is true that the administratrix testified that a contract was drawn up and the name of the individual who prepared it was given, but she did not testify that the claimant signed the contract, nor was any such writing produced cm the trial, nor was any demand made for its production. Furthermore, there is testimony in the record to the effect that Doctor Norton frequently told his niece and others, both before and after her marriage, that it was his purpose to convey, by will or otherwise, the North Denver property to her, but we discover no testimony to show that he ever stated to her, or anyone else, that this would be her full compensation, or that she must remain with him until his death in order to receive that, and failing to so remain, she would receive nothing.
But, even if it be granted that a contract, such as that which is insisted upon by appellant, was entered into, it does not follow, nor do we think the evidence discloses, that the same was broken by appellee. By the mutual consent of both parties to the contract, if there was a contract, it was modified to the extent of permitting the claimant to establish a home of her own, and to thereafter render services of a somewhat different character from those that
3. If there was a contract, then Doctor Norton failed to observe the same, inasmuch as he died without having conveyed the North Denver property to his niece or made any provision whatever for her compensation. Under such circumstances Mrs. Mc-Alister was not bound by the contract, or any feature or condition of it.
In Miller v. Lash, 85 N. C., 51, at 54, it is said:
“The authorities cited in the argument for the plaintiff seem to establish the proposition that where personal services are performed by one person for another during life, under a contract or mutual understanding, fairly to be inferred from their conduct and declarations and the attending circumstances, that compensation therefor is to be provided in the will of the party receiving the benefit of them, and the latter dies intestate, or fails to make such provision, the subsisting contract is then broken, and not only will the action then lie for the recovery of tlleir reasonable value freed from the operation of the statute (of limitations), but it could not be maintained before.”
The right of appellee to maintain her action on a quantum meruit also finds support in Snowden v. Clemons, 5 Colo. App., 251.
4. Was appellee’s claim barred by the statute of limitations? From the record in this case, and from the quotation just made from Miller v. Lash,
The judgment of the trial court will be affirmed.
Affirmed.