BARBARA ROBERTS, Plаintiff and Appellant, vs. DON ROBERTS, as Administrator of the estate of Ora P. Roberts, Deceased, Defendant and Respondent.
No. 2383
Supreme Court of Wyoming
July 13, 1948
Rehearing Denied September 28, 1948
196 P.2d 361 | 197 P.2d 697
TIDBALL, District Judge.
For the Defendant and Respondent, the cause was submitted upon the brief and also oral argument of Wm. J. Wehrli of Casper, Wyoming.
TIDBALL, District Judge.
In this case the trial court at the close of all the evidence directed a verdict for defendant. The plaintiff sued defendant, who was administrator of the estate of Ora P. Roberts for money, the petition containing three causes of action. The first two are for money claimed to be due plaintiff as wages for services rendered Ora P. Roberts in his lifetime, the first declaring upon an express contract and the second upon a quantum meruit or implied contract. The third cause is for money loaned deceased during his lifetime. The plaintiff claimed in her petition that the services were rendered and the money loaned during the period from February 18, 1927, to June 23, 1940, the date of Ora P. Roberts’ death.
When Ora P. Roberts died on June 23, 1940, Barbara Roberts, the plaintiff and aрpellant herein, was appointed administratrix of his estate and served as such till July 10, 1943, when she was succeeded by Don Roberts, the defendant and respondent herein. On April 22, 1941, she filed her claim in the estate for the wages earned and money loaned, claiming $7,400 for wages and $9,194.29 for money loaned. This claim was rejected by the District Judge handling this estate on September 21, 1942, but before that action was taken, claimant waived her claim for wages upon the theory that she being the wife of deceased, could not recover such wages. On February 2, 1943, this court decided that common law marriages entered into in Wyoming are void and that plaintiff was not the widow of deceased. On August 20, 1943, plaintiff and appellant filed what she designated as “Amendment to Claim of Barbara Roberts,” in which amendment she set forth that her original claim for wages had been withdrawn or waived under the mistaken belief that she was the
In our discussion of this case we are assuming that plaintiff and appellant honestly believed she was married to Ora P. Roberts on November 1, 1934. There is no evidence on that point from either side and respondent in his brief does not raise the question as to the good faith of plaintiff. In plaintiff‘s petition she alleges, “At said hearing (referring to the hearing before the District Judge on her claim) the plaintiff, believing herself to have been the wife and then to be
Respondent claims that the present action was not begun in time undеr the Probate Code (
This brings us to the question whether the trial court erred in directing a verdict for defendant on all three causes of action contained in the petition. We shall discuss first the third cause of action based on the claimed loans made by plaintiff to decedent in his lifetime. It is alleged in the petition that between February 18, 1927, and June 23, 1940, plaintiff loaned decedent at his request at various times various sums of money aggregating the total amount of $9,194.29 which various
The evidence regarding the loans is about as follows, keeping in mind that neither of the parties who would know the facts could testify, Ora P. Roberts’ mouth being closed by death and Barbara Roberts’ being closed by the statute prohibiting a party from testifying when the opposite party is an administrator. (
Alice Kaiser, mother of plaintiff, testified by deposition that Barbara was Ora P. Roberts’ wife, that she lived at the Roberts’ ranch for about three years (probably 1935-1937). She saw mоney belonging to her daughter while she was living there in a trunk in a small room in envelopes in a wooden box. She knew her daughter loaned money to Mr. Roberts because she heard him ask for it and she saw her daughter give him money several times, but doesn‘t know how much and Mr. Roberts always said he‘d pay it back and for her to keep an account of it. Major Ormsby visited at the Roberts’ ranch frequently. In 1940 he talked to Roberts about his finances at the Roberts’ ranch when only he, and Mr. and Mrs. Roberts were present. Roberts told him definitely that Mrs. Roberts had advanced him about $7000.00 and that he was to return it to her. From the conversation Roberts borrowed $7000.00 from Barbara from the time she came out there until shortly before Roberts died, starting with 1927. Roberts didn‘t give any dates or when it was. “I saw her turn money over to him twice in 1939 and 1940. It was about $50. I don‘t know it was her money.” Flora Law testified that in the Spring of 1934 at her place of business in Casper she had a conversation with Mr. and Mrs. Roberts. Mrs. Roberts was there running a restaurant in Casper and Roberts was trying to induce her to come back to
It will be seen that the plaintiff sued for $9194.20; Roberts told Major Ormbsy in 1940 shortly before Roberts’ death that Mrs. Roberts had advanced him
Appellant in her brief claims that the pages оf this book should have been admitted, “not because they were records of account or shop-book records, strictly speaking, not because they were made in due course of business or, primarily, that they were made under the direction or by the authority of decedent Roberts, but because, however informally made and regardless of by whom they were made, they were shown to and examined by Ora Roberts, and by him stated to be correct.” In 32 C. J. S. page 584, Sec. 694b the rule is stated:
“Entries in the books of account of one party may be received as admissions of the adverse party where their correctness has been assented to by the latter. . . . If the correctness оf the entries is admitted, they are admissible, even though they are not original or not regularly kept, and even though the items are not the subject of book charge under the shop book rule.”
The same rule is stated in 22 C. J. 891, Sec. 1088. See also 20 Am. Jur. 905, Sec. 1058 and 52 L. R. A. 598. The cases cited in these authorities uphold such rule. In Burnham vs. Rowley, 111 Wash. 656, 191 Pac. 811, the court said, “Whether the ledger account was admissible under what is known as the ‘shop book’ rule need not be determined. The appellant testified that just prior to the time he filed his inventory, this account was shown to Mr. Rowley (now deceased), and he then admitted that it was correct. Under this testimony we think the account should have been admitted in evidence.” See also Commonwealth vs. Grotzner, 125 Pa. S. 305, 189 A. 495, and Wilkins-Ricks Company vs. McPhail, 169 N. C. 558, 86 S. E. 502. The witness Denny hаving testified that Mr. Roberts saw this book in 1940, took the figures therefrom and added them and said they were correct and showed the amount he had borrowed from Mrs. Roberts, it would seem the book should have been admitted unless there is some other reason why it should have been excluded. In addition to the manner in which the book was kept, mentioned above, respondent claims several reasons as to why the pages should not have been admitted. First there is no evidence the pages were in the same condition when offered as when Denny saw them in 1940. It is true there is no such direct evidence, but Denny testified that he saw the pages in 1940 when the book was open on the table and that the ones shоwn him at the trial and offered in evidence were the same pages. Next respondent claims there is no identification of the handwriting of these pages. That is true. However, where the entries have been admitted by the opposite party to be correct, it would seem the handwriting would be of little consequence; in fact they might be typewritten. Denny said he recognized the handwriting but probably meant the handwriting was the same when he first saw the book in 1940 and when shown him at the trial. Respondent also says there is no testimony as to when the entries were made. While that is true, it would seem that if the identification of Denny was sufficient to go to the jury, then it would make no difference as to when they were made, that is to say if the entries were the same in 1940 when Roberts is claimed to have admitted their correctness as when offered in evidence, the time of their entry in the book or by whom made would be immaterial. Further Respondent says the entries themselves do not disclose that they represent money loaned by plaintiff to decedent. The answer to this is as above that if they are the same entries that Roberts admitted represented
We cоme now to the claim for services. Under the rule of law frequently declared by this court, when a motion for directed verdict is made, all the competent evidence of the plaintiff must be taken as true. In the case at bar there is no conflict on the main issues. The plaintiff went to work as a housekeeper and cook on the
The first cause of action in plaintiff‘s petition is upon an express contract which it is alleged plaintiff and decedent entered into and by which he agreed to pay her $50 a month for her services as long as she stayed on the ranch, together with board and lodging. Appellant contends that the evidence shows a continuous employment from 1927 when she first went to the Roberts’ ranch until his death, but we do not think so. She went to Casper, as above stated, in 1933 and went into business for hersеlf in a restaurant and continued in such business until sometime in 1934 previous to November 1, when she was induced by Roberts to give up that business and go back to his ranch. Probably one of the inducements was that they would marry. At any rate we think there must have been a new arrangement and that the continuity of the former employment had been broken in 1933 when she left the ranch, moved to Casper and opened a restaurant. The cause of action for wages previously earned accrued at that time, and as the action was not commenced within eight years thereafter, that part of plaintiff‘s claim for services is barred by the applicable statute of limitations,
This brings us to the question as to an implied or quasi-contract pleaded in the second cause of action. Black‘s Law Dictionary defines it thus:
“A quasi-contract is what was formerly known as the contract implied in law; it has no reference to the intentiоn or expressions of the parties. The obligation is imposed despite and frequently in frustration of their intention.”
Ballentine‘s Law Dictionary defines it as follows:
“Sometimes called a contract implied in law, but more properly known as a quasi contract or constructive contract. It is a contract in the sense that it is remediable by the contractual remedy of assumpsit. The promise
is purely fictitious and is implied in order to fit the actual cause of action to the remedy. The liability under it exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention.”
Keener on Quasi-Contracts says (p. 19):
“By far the most important and most numerous illustrations of the scope of quasi-contract are found in those cases where the plaintiff‘s right to recover rests upon the doctrine that a man shall not be allowed to enrich himself unjustly at the expense of another.”
The case of Willis vs. Willis, 48 Wyo. 403, 49 Pac. (2d) 670, is cited by respondent and it is claimed the rule announced in that case is applicable here. In that case it is said:
“There remains for disposition then the question as to whether or not the plaintiff is entitled to recover under an implied contract. It appears to be a well settled rule ‘that a woman who knowingly and voluntarily lives in illicit relations with a man cannot recover on an implied contract for services rendered him during such relationship. Not only does the relationship as husband and wife negative that of master and servant, but such cohabitation, being in violation of principles of morality and chastity, and so against public policy, the law will not imply a promise to pay for services rendered under such circumstances.‘”
Respondent contends that since this court determined in the Roberts’ case cited above that plaintiff and Roberts were not married, their relationship was illicit and therefore the rule in the Willis case would prevent recovery upon an implied contract. Other cases cited by respondent are cases where the woman knew the relation to be illicit, the respondent contending that it is only in a case where the man has been guilty of fraud that the woman may recover. It must be recognized that most of the cases found on the subject are either cases where the woman knowingly entered into an
In the case of Cooper vs. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892, it was held, where a woman was induced to marry a man by his false representations that he was divorced from his former wife and learned after his death that he was not divorced, that she could not recover on implied contract for her serviсes, but that her action was a tort action for deceit. And in Cropsey vs. Sweeney, 27 Barb. (N. Y.) 310, it was held, where both parties believed the marriage was valid, that she could not recover on implied contract and since the husband was also innocent, no tort action for deceit would lie. The Cooper case is criticized adversely in Keener on Quasi-Contracts at page 321, the author contending she should be allowed to waive the tort and sue in contract, the author saying:
“While if he had received nothing of value from the plaintiff, the plaintiff could only have sued for breach of promise to marry, or in tort for deceit, yet it is submitted that when he because of his tort enriched himself, the plaintiff, if she saw fit to sue, not for damages, but simply for compensation to the extent that the defendant had profited by his wrong, should have been allowed to do so.”
The author points out two cases that refused to follow the Cooper case. In Williston on Contracts (Rev. Ed.) Sec. 1791, it is said:
“By the better view, the element of fraud is not essential; even where both parties are innocent recovery may be permitted to the extent that the one has been unjustly enriched at the expense of the other.”
In the Restatement, Restitution, page 157, in illustrating an action in quasi-contract for unjust enrichment this illustration (3) is given:
“Mistakenly believing that he is properly divorced, A represents to B that he is single and goes through а ceremony of marriage with B. . . . B is entitled to the reasonable value of her services, upon proof that they are of greater value than the value of her support.”
Except for the cases of Cooper vs. Cooper and Cropsey vs. Sweeny (supra), the cases very generally uphold the right of a woman who has been induced by deceit of a man to enter into a putative marriage with him to recover for the value of her services or recover a portion of the estate of the putative husband. Indeed the respondent admits this to be the law. Wolf vs. Fox, 178 Wis. 369, 190 N. W. 90 (which case is cited with apparent approval in Willis vs. Willis, supra). Note 31 A. L. R. 424. Sanguinetti vs. Sanguinetti, 9 Cal. 2d 95, 99, 69 Pac. 2d 845, 111 A. L. R. 342. In this case it is said:
“Where an invalid marriage has been procured by fraud of the de facto husband, who is aware of the invalidity of the marriage, the right of the wife who has acted in good fаith to recover the reasonable value of her services over and above the value of the support and maintenance furnished her by her supposed husband, has been sustained in a number of jurisdictions, including this state (citing cases). The basis of recovery for services in the above-cited cases is quasi-contractual. The supposed husband has been unjustly enriched. . . . These services would not have been rendered but for a belief in the validity of the marriage. . . . It is just and equitable that the de facto husband should make compensation for what has been rendered to him under a mistaken belief in the validity of the marriage which was induced by his own fraud.”
We have not found many cases of а putative marriage where both parties weer innocent and both believed the marriage to be valid. But there are a few. Nor have we found many cases where the putative wife was suing, as in the case at bar, for the value of services. We shall mention some of these cases. Santos vs. San-tos, 32 Cal. App. (2nd) 62, 89 Pac. (2nd) 164, is a case where a man and woman obtained a marriage license and believed that had the effect of marrying them. Upon separation some thirteen years later she sued for half of the community property. While the court held that since they were not married there was strictly no community property, nevertheless allowed her one-half the property, the court sаying:
“Defendant (the supposed husband) cannot be permitted to accept the labor, earnings, society and companionship of plaintiff (the supposed wife) for more than twelve years and retain for himself all the fruits of their labors and savings.”
King vs. Jackson, 196 Okla. 327, 164 Pac. (2nd) 974, was a case where the husband had a former wife living from whom he wasn‘t divorced, though both he and his supposed second wife were apparently ignorant of that fact. After her supposed husband‘s death she sued for half of the property. The lower court apparently gave it to her on the theory that she and her supposed husband occupied the position of partners. The Supreme Court affirmed, apparently оn the theory that since there was no marriage and they both worked to accumulate the property, they could equitably be treated as partners.
In the case of Fung Dai Kim Ah Leong vs. Lau Ah Leong, 27 Fed. (2) 582, two Chinese in Hawaii married according to the Chinese customs, though no license to wed was procured as was required by law—a situation very similar to the case at bar. They lived together for thirty-five years as husband and wife and had thirteen children besides accumulating property worth several hundred thousand dollars. At this juncture the Supreme Court of Hawaii, reversing a former opinion, held that a license was essential to a valid marriage and thereupon Lau Ah, the husband, kicked Fung Dai Kim
“Whatever power, therefore, courts of equity possess to prevent and remove the consequences of fraud, they also possess in dealing with the effects of mistake.”
The court says:
“There are but few reported decisions involving questions of the property rights of a putative wife, where for one reason or another the supposed marriage turns out to be void, but in a majority of those which have come to our attention relief of some character has been granted.”
Citing cases from Washington, California, Texas, Kansas and Oklahoma. The court then says:
“We conclude that plaintiff is entitled to a measure of relief. Upon the question of what standard should be applied in determining the amount and character thereof, the decided cases, as already indicated, are not in harmony, and perhaps no specific general rule can be formulated. Each case must be adjudged in the light of its own peculiar facts and the local law.”
As shown by the above cases and as pointed out by Professor Alvin E. Evans in 9 Cornell Law Quarterly 246 in his article on “Property Interests Arising from Quasi-Marital Relations,” some of the courts having community prоperty laws have allowed the putative wife to take the share of the property she would have taken if the marriage had been legal, while in other states the courts have considered the parties as partners and divided the accumulated property as on the dissolution of a partnership; the tendency of the courts that have had the question before them, at least among the western states, being to allow the wife relief.
The judgment will be reversed, and the case remanded for a new trial.
RINER, Ch. J., and KIMBALL, J., concur.
ON PETITION FOR REHEARING
(September 28th, 1948; 197 Pac. (2d) 697)
On Petition for Rehearing. Rehearing Denied.
Wm. J. Wehrli, of Casper, for respondent in support of petition for rehearing.
OPINION ON REHEARING
PER CURIAM.
Respondent has filed a petition for rehearing on the
The contention was rejected without discussion (196 P. 2d, at 363) because we thought the court had ruled against respondent on that point in a former appeal in the same case, Roberts v. Roberts, 62 Wyo. 77, 162 P. 2d, 117. The former appeal was from a judgment against plaintiff (appellant) after a demurrer to her petition had been sustained. The petition contained no allegation in regard to the publication of notice to creditors, and there was no comment on that subject in the court‘s opinion holding that the demurrer should have been overruled. Respondent argues, therefore, that the decision on the former appeal cannot be accepted as a ruling against him on the contention that appellant‘s claim for wages was not filed or exhibited within ten months after the first publication of the notice. After the case was remanded, following the decision on the former appeal, respondent (defendant) in his answer alleged, and at the trial proved, that the notice to creditors was duly published, and that the first publication was on June 28, 1940. It thus appeared that the time for filing or exhibiting claims expired April 28, 1941.
The other relevant facts in regard to the filing or exhibiting of the claim for wages appeared from the record before the court on the former appeal. The claim was filed April 22, 1941, while the appellant was administratrix of the estate, believing and claiming that she was the widow of the intestate. It was for “work,
Rehearing denied.