Tharp v. Jackson

165 P. 585 | Or. | 1917

Lead Opinion

Mr. Justice McCamant

delivered the opinion of the court.

1. Error is assigned on the admission of evidence over the defendant’s objection to the effect that an agreement was entered into between C. S. Jackson and plaintiff whereby he agreed to pay her $50 a month for her services, the entire payment to be made five years after she entered his services. This testimony is objected to on the ground that the action is based on quantum meruit and that evidence of a contract on the subject constitutes a variance. It is well settled in this jurisdiction that such testimony is admissible as material to the measure of damages: West v. Eley, 39 Or. 461, 465 (65 Pac. 798); Chamberlain v. Townsend, 72 Or. 207, 213 (142 Pac. 782, 143 Pac. 924).

2. This evidence is also objected to on the ground that the declarations of a decedent are inadmissible against his personal representatives except where they relate to his real property. The testimony was admissible under the express provisions of Section 710, L. O. L., which is as follows:

“The declaration, act, or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.”

3,4. Plaintiff was entitled to testify to the declarations of the deceased under Section 732, L. O. L. Her testimony on the subject made the declarations of the deceased admissible on behalf of the defendant and the Circuit Court was liberal in admitting his declarations offered by the defendant.

5. On plaintiff’s objection the court excluded calendars for the years 1909 to 1913 inclusive, on which the deceased had made certain notations of the business transacted in his office from day to day. There were many days on which no notations were made on the calendars. The claim of the defendant with reference to this testimony is defined in the offer of her counsel:

“We offer these calendars in evidence as entries made in the regular course of business by the deceased. The purpose is to show the dates on which he worked at his office and when he was at his ranch and the amount of work that was carried on at the office, as going to show the amount of work, for the purpose of showing the reasonable value of services performed by the plaintiff.”

The calendars had no tendency to prove the small volume of work done at the office in the absence of evidence that all business transacted at the office was noted on the calendars. The bill of exceptions contains no such evidence. The calendars were properly ' excluded.

Before bringing this action plaintiff presented her claim to the defendant as administratrix and the claim was rejected. It is provided by Section 1241, L. O. L., that in such case the claim shall not be allowed by-a jury “except upon some competent or satisfactory evidence other than the testimony of the claimant. ” This statute has been construed by this court in Goltra v. Penland, 45 Or. 254, 264 (77 Pac. 129). The instructions given by the Circuit Court were in harmony with this construction of the statute and it was not error to refuse defendant’s requests one, three and seven, which were directed to this same subject.

6, 7. The defendant’s fifth request asked the court to charge that plaintiff could not recover unless she proved the contract with the deceased to which she testified. The sixth request was an instruction to disregard the evidence of the reasonable value of plaintiff’s services if the jury should find that an agreement was entered into. Both of these requests were properly refused. The action was on quantum meruit. While evidence of the agreement was admissible, the agreement was not indispensable to a recovery by plaintiff. Plaintiff was entitled to have the jury consider other testimony bearing on the reasonable value of her services.

Plaintiff testified that under her arrangement with the deceased her compensation was not to become due until February 10, 1913. Her testimony was to the effect that Mr. Jackson had a number of large cases which he did not expect to finish for several years and that therefore this unusual arrangement was made on the subject of her compensation. The defendant pleaded the statute of limitations. The court instructed the jury as follows

“You can consider the agreement for another purpose and that is to determine when, if at all, any amount became due * * under her agreement if she had any. Now, the law would provide that for her work if the amount became due, as alleged in the defendant’s answer, and six years had elapsed before the commencement of the action, although she had earned it, she could not recover because the statute of limitations would apply and defeat the action; but if the payment was deferred, then of course it would not become due until such time as the agreement provided for.”

This instruction correctly stated the law.

8. The defendant moved for á nonsuit and for a directed verdict. These motions were based chiefly on the contention that there had not been sufficient corroboration of plaintiff’s testimony to entitle her to a verdict. A number of witnesses testified that she performed services for the deceased and his letters to her justified the inference that she was to be paid for these services. There was also received in evidence a check drawn by the deceased in favor of plaintiff on which was written, “In full of all claims to date.” This check was dated April 18,1914; it was cogent evidence that plaintiff had a claim against the deceased on that day. The check was for $30 and plaintiff had refused to accept it. There was sufficient corroboration of plaintiff’s testimony to sustain a verdict in her favor and the court did not err in submitting the case to the jury.

We find no error and the judgment is affirmed.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.

Denied July 10, 1917.

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Rehearing

On Petition for Rehearing.

(165 Pac. 1173.)

Messrs. Neuner & Wimberly, for the petition.

Mr. John T. Long, Mr. Henry T. Bagley and Mr. Arthur Langguth, contra.

Department 2.

Mr. Justice McCamant

delivered the opinion of the court.

Appellant’s petition for rehearing reargues the matters determined in the former opinion and presents with much force a question which was passed upon by us only inferentially. The claim presented to the administratrix does not set out the agreement testified to by plaintiff to the effect that she was not to be paid for her services until five years after she entered the office of the deceased. It is contended that the failure to mention this agreement in the claim, precludes its assertion by plaintiff in this action. It has been held that if the claim presented shows on its face that claimant has no cause of action, the claim cannot be the basis of a successful litigation with the executor: Wilkes v. Cornelius, 21 Or. 348, 352 (28 Pac. 135); McGrath v. Carroll, 110 Cal. 79 (42 Pac. 466, 468). The action at law must he based on the same claim as that presented to the personal representatives of the deceased: Wilkes v. Cornelius and McGrath v. Carroll, supra, Etchas v. Orena, 127 Cal. 588 (60 Pac. 45). Within the rule announced by these authorities we think that plaintiff’s claim presented to the administratrix is sufficient to sustain the judgment she has recovered. It was held by this court in Wilkes v. Cornelius, 21 Or. 348, 350, 351 (28 Pac. 135), that:

“The facts constituting the claim need not be stated with the same particularity required in a pleading in an action at law, but may be asserted in general terms; and however informal the claim may be, if it show a substantial liability in favor of the claimant and against the estate, it will be sufficient.”

The claim demands the same sum as that for which this action is brought. Like this action it is based on a quantum meruit for services rendered and the services are specified in the claim as they are specified in the verified statement of plaintiff’s account furnished the defendant on demand. The claim does not appear to be barred by the statute of limitations; on the contrary, nearly all the services rendered are alleged to have been performed within six years prior to the death of defendant’s decedent. It was not necessary for plaintiff to set up in her claim the evidence on which she relied to support it. The former opinion is adhered to and the petition for a rehearing is denied. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.