103 Kan. 97 | Kan. | 1918
The opinion of the court was delivered by
Samuel Burkhart and John T. Weaver were half brothers. Samuel Burkhart, who was unmarried, was advanced in years and was weak-minded. He owned 160 acres of land in Cowley county, near Winfield. Sometime in 1912 he was adjudged incapable of transacting business, and John W.
The theory upon which Weaver seeks to recover against the estate is best explained by his own testimony. He testified that he had an understanding with the guardian that he was to be paid $2.75 a week “to take care of Samuel and look after him, board him and do his washing.” He was then asked: “Was that a reasonable and fair price for the board at the time when it was made?” Over the objections of counsel for the administrator, he testified that 'it was not a fair contract the last year or two of Samuel Burkhart’s life; and again, over
“Well, so far as I remember, Mr. Skinner said he would pay us more in the future; something similar to that; I don’t just remember.
“Q. Said he did n’t have the money now, but intimated that he might have later? A. Something similar to that.”
The plaintiff himself did not testify to any agreement with the guardian for additional compensation.
We think the court should have sustained the administrator’s demurrer-to the evidence. The plaintiff admitted making a contract with the guardian to board and take care of his brother for $2.75 a week, and the uncontradicted evidence shows he presented each month a bill to the guardian for compensation at the agreed rate, which the guardian duly paid. He relies on the testimony of Mrs. Weaver to the effect that she had some kind of an understanding with the guardian that at some indefinite time in the future he would pay more, and upon the claim that the services rendered were worth more than the compensation agreed upon. The plaintiff had no claim against his brother in the latter’s lifetime, because Samuel Burkhart was under the care of a guardian. After Samuel’s death, and before the appointment of an administrator, the guardian paid the balance claimed to be due according to the terms of the agreement. The compensation may have been inadequate, but it was the amount agreed upon in the contract; and besides, the ev4dence shows that part of the consideration agreed upon consisted of the money expended by the guardian in repairing and
The judgment is reversed and the cause remanded with directions to sustain the demurrer to the evidence.