182 Wis. 349 | Wis. | 1924
Lead Opinion
The following opinion was filed June 5, 1923:
We shall not enter into a discussion of all the questions rdised and argued upon the appeal because in
We are unable to find any evidence in the case which sustains the finding that a contract for a specific amount was ever entered into between plaintiff and the deceased. The substance of the evidence above set out as well as all other evidence in the case fails to show that any of these conversations took place in the presence of plaintiff, or that she at any time agreed to serve the decedent for any specific length of time for any specific sum of money. We therefore hold that the finding of the jury referred to must be set aside. But the above evidence as well as other evidence shows clearly that the decedent intended that plaintiff should be paid for her services at or after the death of the decedent. That such understanding came to the knowledge of the plaintiff and was acquiesced in by her is evident from the extracts contained in the letters above "quoted. So we have
It is not disputed that the plaintiff rendered valuable services for the decedent, and though it is urged by the defendant that the finding of the jury as to the reasonable value thereof is too high, we cannot disturb the findings on that ground. It is probable that had the decedent been in circumstances where she could, without selling a portion of her property, as she states in some of her letters, have paid the plaintiff in cash, she would herself have made the payment at least equal to if not greater than that found by the jury. That is almost conclusively evidenced by the testimony of Mon-son, who says she desired to give her the sum of $3,000 and signed a note with the request that it be filled out for that amount.
Some errors are alleged to have occurred in the admission and rejection of evidence as well as prejudicial statements claimed to have been made by counsel for the plaintiff in his argument to the jury. Were it a case in which the evidence was in sharp conflict and preponderating but little in favor of either party, we might well reach the conclusion that some of the statements made in argument to the jury by counsel for plaintiff were prejudicial; but, as before stated, we deem the evidence so satisfactory and conclusive
By the Court. — Judgment entered accordingly.
Dissenting Opinion
The following opinion was filed February 18, 1924:
(dissenting). The claimant, then eleven years old, went to lite with the deceased in 1902; the latter, then living with her brother on his farm, to which she received a deed in 1910, when the claimant left. The only subsequent periods during which services could have been rendered to support any allowance are as follows: January to May, 1912; September, 1912, to April, 1913; October, 1913, to May, 1914, when she married; December, 1914, to May, 1915; and in February, 1917, for three weeks. Not again until March, 1921, just at Mrs. Huskelhus’ death. In -the interval of 1915 to 1917 claimant and her husband took up and lived on a North Dakota homestead — a conclusive renunciation of a home in Wisconsin.
Of the several theories upon which plaintiff relied to support a judgment in her favor, the majority opinion has disposed of the one asserting the existence of a contract for the specific sum of $3,000 by declaring that the evidence cannot support the jury’s finding in that respect, and on this point we all agree.
There is left then the question whether there was an express contract between the parties that claimant should be compensated for agreed services and further expressly providing, in order to avoid the statute of limitations that would
Such contracts when made usually, if not invariably, provide for continuous service until the time for payment. If at any one of the brief periods of service above specified there was any such contract made, it was terminated or breached by claimant’s leaving such service. If it was made prior to claimant’s marriage in May, 1914, in any one of the short periods, January to May, 1912, September, 1912, to April, 1913, or October, 1913, to the marriage, it is, I submit, a violent assumption under the record here to say that any such contract contemplated continuous service during Mrs. Huskelhus’ life and postponed payment until the latter’s death. But if such a contract was made, then certainly claimant’s marriage and removal breached or terminated it. If a new contract was made, claimant then married, for the period commencing December, 1914, that surely was breached or terminated by the leaving and taking up the North Dakota homestead. There is left, then, only the three weeks’ period in February, 1917, for the departure then is final so far as services are concerned.
A repeated examination of the record convinces me that there is no evidence to uphold the necessary conclusion to support the claim that there was ever any definite agreement between the two. If there ever was any express, definite contract, it was, by claimant’s own acts, breached or terminated. Or if, on the other hand, there was any such express contract, then there could be no reliance upon any implied contract. Estate of Andrus, 178 Wis. 358, 190 N. W. 83.
The relationship between them was such that Mrs. Hus-kelhus may well have intended to provide by her last will for the claimant, and her expressions given in the evidence indicated that rather than recognition of a binding contract obligation; but she having failed to do so in manner and
Rehearing
On October 16, 1923, a motion by the appellant for a rehearing was granted, and the cause was reargued on December 15, 1923. The following opinion was filed January 15, 1924:
(lipón rehearing). A reargument was granted in this case principally for the purpose of ascertaining whether or not there was sufficient evidence to show an agreement between plaintiff and the deceased that the services rendered by plaintiff were to be paid for at the death of the deceased. After hearing such argument we are of the opinion that the evidence sustains the judgment rendered upon the original hearing, and such judgment is therefore adhered to and affirmed.