39 Ind. App. 108 | Ind. Ct. App. | 1906
The claim of the appellee against the appellant as administrator of the estate of Patrick Mehan, deceased, contained two paragraphs, the first of which was based upon a written promise to pay the appellee $2.50 each week, from a date stated, as long as she remained in his ■ service; and in the second paragraph the claimant sought to recover upon a check given by the decedent upon a certain bank, which, upon presentation, the bank refused to pay, the check being as follows:
“Cicero, Indiana, April 9, 1904.
The Cicero Bank.
Pay to the order of Mary Dunleary $1,000.
Pat Mehan.”
Without the filing of an answer the cause was tried by jury, and a general verdict in favor of the appellee for $1,271.75 was returned, with special findings in answer to interrogatories. The appellant moved that the court give judgment in favor of the claimant for the sum of $198.75
By' the answers to interrogatories the jury specially found, in substance: That the appellee accepted employment by the decedent May 4, 1902, to work for him at his home in Hamilton county, and the decedent executed the written agreement mentioned in the first paragraph of claim, by the terms of which he agreed to pay her $2.50 per week as long as she’ remained in his service, the agreement not specifying any particular kind of service. She continued to work for him under the terms of that agreement from that date until his death. The decedent made partial payments to her for her services under this agreement, and the jury specially found that there was due the claimant from the decedent at the time of his death, for services rendered under this agreement, the sum of $198.75, and that on April 9, 1904, he was indebted to her in the sum -of $1,187.50, in consideration of labor, love, and affection. April 9, 1904, the decedent signed a check payable to the claimant and drawn on the Cicero bank for $1,000, which check was then delivered to the claimant. He at that time intended that she should collect’ this check and receive said sum of $1,000. He had sufficient mental capacity to transact business. E. G-. Dunn afterward, and before the death of the decedent, cashed this check at a bank at Elwood. The check was presented for payment to the Cicero bank during the lifetime of the decedent, by a correspondent bank at Indianapolis. When it was so presented to the Cicero bank, payment
It is manifest that in the amount of the general verdict —$1,271.75—was included the sum of $198.75, which the jury assessed as being the amount due the claimant at the date of the verdict upon the written contract declared upon in the first paragraph of claim, and the sum of $1,073, which the jury assessed as then due upon the check, on which the second paragraph of claim was based. If, therefore, the claimant was not entitled under the special findings of the jury to judgment for any amount under her
Judgment reversed, and cause remanded, with instruction to sustain the appellant’s motion for judgment.