88 N.Y.S. 91 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiff asks for a judgment for $100,000 against the estate of Robert Bonner, deceased, upon an alleged agreement by which Robert Bonner agreed to assure to the plaintiff that sum upon his death. The question whether or not such a contract was made was submitted to the jury, who found a verdict for the defendant; -and this appeal is based upon errors committed' at the trial, mainly those in relation to the admission of evidence. The substantial question submitted to the jury was, whether or not the contract or agreement sued on was ever made; and the jury having found upon that issue in favor of the defendant, it would be manifestly unjust to reverse the judg ment unless there were errors of a substantial character which affected that issue, as that was the only issue about which there was any substantial dispute. The witnesses for the plaintiff, as well as those for the defendant, testified that the plaintiff had rendered services to Mr. Bonner from the time it is alleged this contract was made to the time of his death, and that Mr. Bonner constantly consulted with him about his horses, and it is evident that if a valid contract such as is alleged in the complaint had been made the plaintiff would have been entitled to the direction of a verdict in his favor. Thé making of the contract was the one substantial dispute upon the trial, which has been resolved in favor of the defendant, and if that verdict did substantial justice between the parties, and there was no material error committed which had relation to that particular issue, an appellate court is not required in the administration of justice to reverse the judgment because of errors which affected other issues which were not in substantial dispute.
There was no question as to the value of the plaintiff’s services. The cause of action as alleged in the complaint is that between the 15th day of May, 1876, or thereabouts, and the 6th day of July, 1899, the plaintiff rendered services to said Robert Bonner at his request as a veterinary surgeon, and provided and administered divers medicines and furnished other material in that behalf for said Robert Bonner
Of the many attempts that have been made to recover by an action at law because of disappointed expectations as to the disposition of a dead man’s property, this is the first case to my knowledge in which it has been alleged that a person in the full possession of his faculties and in middle life has agreed to pay such a sum of money to an entire stranger, not connected with him by blood, for services to be rendered ; and from the very nature of the contract alleged and the nature of the proof to support it, to which attention will be called, the claim itself must be looked upon as one most unusual and improbable. The contract is alleged . to have been made on the 15th day of May, 1876. Mr. Bonner, a man of large wealth and important business interests, lived until 1899, over twenty-three years. It is not alleged that during all that time any claim of any character or description was made against him, based upon this contract. It is conceded that during all that period he had employed the plaintiff to shoe his horses, both in New York and at his country place; that during this period of twenty-three years the plaintiff furnished monthly bills for the services that he rendered to Mr. Bonner, which bills were always promptly paid upon presentation. There is evidence that, in addition to receiving payment of the monthly bills from Mr. Bonner, the plaintiff borrowed money of Mr. Bonner, which was repaid without a claim of any kind, so far as appears, that Mr. Bonner was indebted to the plaintiff in any amount, except what had been promptly paid upon a- presentation of the bills therefor. The evidence to sustain this contract consists entirely of alleged declarations made by Mr. Bonner to four individuals, in no way connected with him, hut who are
The plaintiff’s father came to this country in the year 1869, and in the spring of 1870 he opened a horseshoeing establishment in the city of New York. It appeared that he had made a particular study of horses’ feet and had written a book on that subject, and after he came here Mr. Bonner employed him to shoe his horses, and subsequently it would appear that they consulted together about horses and the proper method of shoeing them. This relation continued for several years.. In 1876 the plaintiff’s father had an establishment in Thirtieth street, and the plaintiff, then about twenty-one years of age, had opened, a horseshoeing establishment of his own, and had commenced to attend a veterinary college, from which he graduated in 1880. In the fall of 1875 it appears that Mr. Bonner had employed the plaintiff to do some horseshoeing, and the plaintiff continued to do work of this kind for Mr. Bonner until his death in 1899.
Before calling attention to the testimony by which it is sought to prove this contract, there are two principles which it is well for us to bear in mind in considering the weight to be given to this testimony. The first is that verbal admissions, uncorroborated by other facts or evidence, should always be weighed with great caution, and that admissions made in the course of a casual conversation after a
We have in this case a contract alleged to have been made, twenty-three years before the decedent’s death, by which for indefinite services to be rendered in the future as a veterinary surgeon by a young man of twenty-one years of age, who had just commenced to study that profession, there was an absolute promise to pay $100,000 — a contract which requires strong and convincing evidence to sustain it, where the only evidence of it is testimony of casual conversations with the decedent, which took place many years after the contract is alleged to have been made, and under circumstances which at least render the accuracy of the testimony as to the conversations extremely doubtful. Can a contract which must be proved by strong and convincing evidence be said to be proved by testimony of such improbable admissions?
The first witness who was called to prove this contract testified that he first made the acquaintance of Hr. Bonner about the year 1882, in the horseshoeing establishment of the plaintiff’s father; that thereafter he knew Mr. Bonner so as to-shake hands with him and pass the time of day; .that he saw Mr. Bonner generally about a dozen times altogether watching his horses being shod ; that he also met Mr. Bonner ten or fifteen times at horse sales, the particular ones he could not recollect; that the last horse sale he attended at which he saw Mr, Bonner was in 1894, at the Madison
The second witness called by the plaintiff, was the plaintiff’s brother, who. was also a horseshoer and had been in the plaintiff’s employ. He testified that on February 22 or 23, 1895, he had á conversation with Mr: Bonner at his horseshoeing establishment in Thirtieth street; that he told Mr. Bonner that his brother’s business had suffered because of his attention to Mr. Bonner, to which Mr. Bonner replied that the plaintiff had done him a favor years ago through saving his life, and that he said that “ he had m,ode an agreement with him to pay one hundred thousand dollars at his death. He asked my brother if he wished to be paid monthly or whether he would rather have it in bulk, and my brother told him that he would rather have it in bulk, so that he told him to continue doing his work as veterinary, and when he died there would never be any trouble, one hundred thousand dollars would be left .to him; ” that Mr. Bonner spoke about the plaintiff saving his life; that it was about twenty-five or twenty-seven years before. Upon cross-examination he stated that Mr. Bonner said, “ Never mind how my brother had been injured taking care of him or shoeing him; that he had an agreement with my brother some twenty odd years previous that he was to pay him $100,000 at his death. He asked him whether he would rather have the money in a lump or whether have- it monthly, and my brother chose in a lump, and he says there will never be any question about it.”
The next witness was a horseshoer, unemployed at the time of the trial. He testified that he had known the plaintiff for fifteen or sixteen years when he went in his employ; that in November,
The next witness was a horseshoer in the employ of the plaintiff, and as plaintiff’s employee he had done work for Mr. Bonner. He testified that he remembered having a conversation with Mr. Bonner about May, 1898, at the plaintiff’s office ; that the witness was shoeing a horse at that time for Mr. Bonner, when Mr. Bonner asked the witness how long he had known the plaintiff; that the witness said seventeen or eighteen years, when Mr. Bonner replied, “ ‘ I know the doctor over thirty years, when he was a boy. The doctor saved my life at one time, and to compensate him for his service, to show my appreciation, I asked the doctor how he would like to be compensated for his services in the city stable, his veterinary services. Would he like me to pay him monthly or leave him a lump sum, provided he stayed with me always, and the doctor accepted that and he said he preferred to take the one hundred thousand dollars.’ And Mr. Bonner said, ‘ The doctor will be a lucky man for saving my life.’” This is the only witness that injects into the statement by Mr. Bonner that the services to be performed by the plaintiff were veterinary services for which he was to be paid $100,000 ; and the testimony of these admissions of Mr. Bonner is the only testimony in the case that has the slightest
Leaving out of view the improbability of the whole story of Mr. Bonner’s having any such conversation as is detailed with any of the witnesses, it will be seen how a very slight change in the words used would make a statement of an intention to do something for the plaintiff, or to make some provision for him by will, an admission of a contract. I think that these conversations, assuming them to have been correctly reported, are too indefinite and uncertain to base a finding that any contract such as is alleged in the. complaint was made; and if we assume that these witnesses detailed-what they remembered of casual conversations of this kind, which had taken place years before, the recollection of such conversations must be .so uncertain that the court would not be justified in sustaining a verdict based solely upon them. If such a contract had been made it is certain that the plaintiff could not have been mistaken as to its character or his rights under it; and that when he discovered that no provision for him had been made by Mr. Bonner in his will he would at once have presented a claim based on the contract. It is important, therefore, to consider plaintiff’s proceeding immediately after Mr. Bonner’s death, to see if it is consistent with the execution of such a contract.
Mr. Bonner died in July, 1899. In August, 1899, the plaintiff consulted with his attorney about his claim against Mr. Bonner’s estate, and it must be assumed that he stated to the attorney the facts in regard to his relations with Mr. Bonner. On the 19th of December, 1901, nearly two and a half years after he had first consulted his attorney, he sent to the executors of the estate of Mr. Bonner a bill for professional services rendered “ to the late Robert Bonner, at city stable., including consultation and advice at house evenings, also- professional services rendered at Auction Sales, Horse Shows, and other stables,” for twenty-three years at $3,000 per year, $69,000. To this bill was attached the following note: “ Providing I receive a check for $25,000 within one month from date, I will receipt the above claim in full.” When this claim was rejected by the two executors, he sent a copy of it to Mr. Bonner’s daughter, who was executrix, with a letter dated "December -26, 1901, which he closed as follows: “If a party’s services for 25 years is not worthy
The plaintiff also endeavored to prove conversations with the executors of the estate prior to the bringing of the action; and offered in evidence a long communication which he had sent to the executors in relation to his claim, objections to both of which the court sustained. This evidence could have had no bearing upon the main question at issue, namely, whether or not a contract was made. The plaintiff was allowed to testify that he had made a claim for $100,000 upon- the estate prior to the presentation of his .claim for $69,000; and that fact was all that was essential. None of the other exceptions require consideration, in view of the opinion that we have expressed as to the probative force of the plaintiff’s evidence. The jury having determined this question of fact in favor of the defendants, we are not justified in setting aside the verdict.
It follows that the judgment and order appealed from are affirmed, with costs.
O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Hatch, J., dissented.
Dissenting Opinion
(dissenting)
I dissent from the prevailing opinion in this case, for the reason that upon the evidence a case was presented as to the existence of the contract which required its submission to the jury. Upon such question the entries made by Mr. Bonner in his memorandum book were competent evidence and bore upon the vital questions in the case. The exclusion of such evidence, therefore, constitutes reversible error.
We are not now concerned with the question as to whether a recovery by the plaintiff can be sustained upon the evidence received, and that which was improperly excluded.
It will be time enough to consider such question after a verdict has been rendered in plaintiff’s favor, if that event ever happens.
I, therefore, think that the judgment should be reversed and a hew trial ordered, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.
