30 Del. 537 | Del. Super. Ct. | 1919
The plaintiff, being asked, “Have you ever received any compensation for your services in nursing Mrs. Pierce?” The question was objected to as being a transaction with deceased.
The question comes within the exception of the statute. The objection is sustained.
It was shown for the defendant that the deceased, during the time she lived with plaintiff, in addition to paying her board, performed acts of financial assistance to plaintiff and her husband; that she frequently visited friends and relatives and was, therefore, for considerable periods, away from plaintiff,
I do not consider this case an authority for the admission of this testimony. I sustain the objection.
In view of the state of the evidence, the objection is overruled.
charging the jury:
This is an action of assumpsit brought by Anna E. Palmer, the plaintiff, against George Lodge, Executor of the estate of Orpah P. Pierce, deceased, and is based upon contractual relations which the plaintiff alleges existed between the plaintiff and Orpah P. Pierce, the deceased.
The plaintiff claims that the estate of Orpah P. Pierce, is indebted to her in the sum of $4,580 as compensation for services performed as a nurse and personal attendant for Orpah P. Pierce at stated periods from March 14th, 1913, to the twenty-first day of February, 1918, at the special instance and request of the said Orpah P. Pierce and upon her special promise to pay the plaintiff for the services so rendered; for which the plaintiff claims she has
The defendant denies that Orpah P. Pierce in her lifetime promised to pay the plaintiff for the services as claimed by her, and that for any services that the plaintiff performed for the deceased, Orpah P. Pierce, she was amply and fully paid. The defendant also claims that Orpah P. Pierce, the deceased, was in sufficiently good health as not to require services and personal attention to the extent claimed by the plaintiff.
Counsel for the defendant has requested the Court to give you binding instructions to find a verdict in favor of the defendant; but this the Court declines to do because it is of the opinion that the case should be submitted to the jury for their consideration and determination under the evidence taken in connection with the law as the court shall state it.
Under the state of the evidence and the pleadings in this case the plaintiff cannot recover unless you are satisfied from the evidence that Orpah P. Pierce, made an express agreement with the plaintiff for her services as alleged and promised to pay her for such services. The plaintiff would not be entitled to recover in this action upon an implied promise between the decedent and the plaintiff with respect to the alleged services, and plaintiff cannot recover if you should find that there is nothing due and owing her from the estate of the deceased, by reason of the alleged services.
It is the claim of the plaintiff that the terms of the alleged contract between the plaintiff and Orpah P. Pierce were expressed with the exception that the amount of payment she was to receive from Mrs. Pierce for the alleged services was not determined and she seeks to recover for the alleged services at the rate of twenty dollars per week.
One party to the alleged contract cannot testify with respect to the alleged contract because she is now deceased, and the other party to the alleged contract is not permitted to testify by reason of a statute in this state, only under circumstances which are not present in this case.
In determining the questions whether there was or was not a contract as alleged for the services as claimed by the plaintiff, and also whether or not the estate of Orpah P. Pierce is now indebted to the plaintiff for services as claimed under the alleged contract, it is your duty to consider all the evidence in the case introduced on the part of the plaintiff, and that introduced in behalf of the defendant.
We will say to you that under the evidence in this case, unless you are clearly of the opinion that the deceased, within three years of the bringing of this suit, promised to pay the plaintiff for her services, or within that time acknowledged the existence of her claim, you cannot find a verdict for the plaintiff for any services performed by her more than three years before the bringing of her suit. This action was brought on the first day of March, 1919.
Verdict for plaintiff.