168 Iowa 288 | Iowa | 1914
“Q. I am asking you if any of these things and other things you mention were done at the personal request of Dr. Worley?
“A. It was implied in a verbal contract made the last week in August or about the 1st of September.
“Q. In what year?
“A. 1904.
“Q. Well, it was implied in the contract that you made with him ?
“A. A verbal contract.
“Court: Well, I will govern that by a ruling or instruction.”
Counsel for defendant then moved to strike out all the testimony of the witness so far given, because the -testimony and witness are within the prohibition of Sec. 4604 of the Code; and for the further reason that it appears for the first time that said testimony is incompetent because:
‘ ‘ Court: Where does it appear for the first time ?
“Mr. Tobin: That said testimony, rather, is incompetent for the reason that it is based upon an alleged contract in 1904, and that the same would now be barred by the statute of limitations.”
The court thereupon excluded “the testimony of the witness as to the items of work that he did at the personal request of Dr. Worley. It seems to me that is a personal transaction. ”
The motion to strike was not well taken because it included
We have already disposed of so much of this assignment as relates to the evidence of plaintiff. Mrs. Palmer was a daughter of the claimant. We do not find that either of these objections were made to the testimony of Mrs. Palmer on the trial. There was objection to her evidence and to her as a witness, on the ground that she was incompetent under See. 4604. There was considerable discussion between the court and counsel for defendants on that subject, but that question is not now relied upon or argued. Furthermore, claims in probate are not subject, generally, to the same rules of pleading which prevail in ordinary litigation. Chariton Bank v. Whicher, 163 Iowa 571, 578; University v. Emmert,108 Iowa 500, 502.
“Plaintiff had made his plans to go away, and Dr. Worley and Mrs. Worley asked plaintiff to stay, and stated that if he would stay he would be paid, and paid well. My father said he would stay, and the matter was closed. There was no stated amount of money plaintiff should receive as pay. There was a subsequent conversation between plaintiff and Mr. and Mrs. Worley on Labor Day in 1907 in reference to the work of the house. At that time Dr. Worley and Mrs. Worley again asked my father to stay and continue his work as he had been doing.”
She then testifies to the character of work she saw her father doing from the fall of 1904 until May, 1912:
“That he did cooking, bread baking, dish washing, scrubbing, heavy sweeping, eared for the furnace, made the garden, mowed the lawn and cared for the walk, waited on Dr. and
A physician, testifying for defendant, testifies that he never knew deceased to have any trouble with the eye socket until his last sickness; that at that time he found there was an infection in the orbit. It was painful, and matter was discharged from the orbit. He complained of a pain in the back of his head and medicine was injected to relieve the pain in the eye.
There was evidence of other witnesses on the character of the work which was done, and the condition of the deceased and his wife at different times while plaintiff was there. Evidence was given as to the value of the services. Plaintiff made a claim of $35 per month from September 1, 1904, to September 1,1911, and of $50 per month from that time to the death of Mr. Worley. The testimony of Mrs. Palmer was not denied or contradicted, and defendant introduced no evidence as to
This disposes of the fourth assignment, as also the claim that the verdict is excessive. What we have said disposes, also, of the fifth assignment of error, wherein it is claimed that the court erred in giving instruction No. 4, because no implied agreement had been pleaded, and that there was no competent evidence of such an agreement. If the jury believed the testimony of Mrs. Palmer, then an implied agreement or promise ■to pay reasonable value would arise.
Appellant cites 25 Cyc. 1078, where one of the rules bearing upon this point is stated in this way: That in case of services rendered through a long period of years, without time of payment being specified, the law implies a promise to pay for the services as they are rendered, so that an action may' be brought at any time during the course of their rendition, and hence that no recovery can be had for services rendered more than the statutory period before action brought.
“Where the contract of employment embraces several distinct items of service, which can be and are separately performed and the compensation for each is settled and apportioned, the contract is severable, not entire, and as to each item a cause of action accrues and the statute begins to run when that particular service is rendered. If the contract of employment does not fix any time for payment, the general rule is that the statute begins to run when the work is completed, and not sooner, for the promise to pay continues up to the time the work is finished. Where services are rendered for a long period of time under an agreement wholly indefinite in regard to the period of employment and the mode or rate of compensation, the decisions are in conflict as to when the statute begins to operate. In several jurisdictions the rule in such cases is that the contract is a continuing one, and that the employee’s right of action accrues and the statute begins to run when, and only when, the services are fully performed or the employment otherwise terminated, and it is immaterial whether the contract for the services is express or implied. ’ ’
Still another rule is stated at page 1078 of the same volume. Appellant also cites the following Iowa cases as sustaining the rule he quotes from Cyc.: Wise v. Outtrim, 139 Iowa 192; Carroll v. McCoy, 40 Iowa 38; Price v. Price, 34 Iowa 404; Porter v. Railway, 99 Iowa 351; Broughton v. Nicholson, 150 Iowa 119.
An examination of these cases shows that they do not sustain appellant’s contention. In the Wise case it was a question of pleading, in which it was held that an amendment filed after the expiration of the period of limitations, but referring to a prior statement of the same claim filed within the statutory period, should not be treated as the statement of a new claim, but rather an amendment.
The Carroll case seems to be against appellant’s contention, for there the holding was that, if the contract for the sup
In the Price ease, the question was as to whether a parol promise to pay a debt barred by the statute of limitations was enforceable.
In the Porter case, the question was as to whether the account was. a continuous, open, current account, and whether a balance struck in a settlement had been brought forward, so as to constitute a part of the account.
In the Broughton case, the evidence tended to show an understanding between plaintiff and decedent that plaintiff should be reimbursed at decedent’s death. The account was for services rendered and money advanced for a long period of years, and it was held that it was a question for the jury whether the case was taken out of the statute of limitations.
The rule contended for might apply in some cases, where the employment was from month to month or year to year, and there were other circumstances hearing upon the time of payment, but such is not this ease, and we do not, therefore, determine what the rule would be under other circumstances. The instant case is ruled by Bowie v. Trowbridge, 158 Iowa 98, 102; Kilbourn v. Anderson, 77 Iowa 501; Asher v. Pegg, 146 Iowa 541.