Slater v. Estate of Cook

93 Wis. 104 | Wis. | 1896

WiNsnow, J.

This action was tried by the court, trial by jury having been waived. It is evident that if the findings of the court a,re sustained by the evidence the judgment must be affirmed. If the fact be that John Slater lived with and labored for the deceased as a servant, under her promise to compensate him for his services, and she did not pay him in her lifetime, then he is entitled to recover the value of his services from her estate. This statement needs no authority to support it. We have carefully examined the testimony, and have come to the conclusion that the findings of the •court are fully sustained by the evidence.

Objection is made to an amendment of the complaint which was allowed after the trial of the case. The complaint, as it stood before and during the trial, charged that the plaintiff’s services were performed under an express contract by which Mrs. Oook agreed, in return for such services, to bequeath to the plaintiff all of her property at her ■death, and prayed judgment setting over to the plaintiff all the personal property of the estate. After the trial, the court having concluded from- the evidence that Mrs. Cook simply agreed to compensate the plaintiff, and evidence of the value of his services having been received without objection, an amendment was allowed to the plaintiff’s prayer for relief, so that it should pray to recover the value of his services in case he was adjudged not entitled to the whole estate. This amendment was proper. The amendment was consistent with the facts proven on the trial, and, had there been no amendment, the judgment would not be reversed. R. S. sec. 2886; Forcy v. Leonard, 63 Vis. 353.

By the Court.— Judgment affirmed.