101 Mich. 526 | Mich. | 1894
Simon Westra, the claimant, was the husband of Janet Westra, deceased. He presented a claim against the estate for $626.29 for materials furnished and work done in the construction of a house, barn, and fence upon his wife's land. The record is meager, and does not purport to set forth all the testimony.
“That you may find that Mrs. Westra did agree fully to the details, terms, and prices with her husband, and such other things as would render the understanding between the parties full and complete in every detail, or that the same may have been done under an implied contract; that is, a contract arising by implication, arising from the situation of the parties and the relation and dealings of the parties, conduct of the business, or the statements of the parties made with reference thereto."
" As between husband and wife, the law does not imply any agreement on the part of one to pay for labor performed or money expended for his or her benefit by the other, without any agreement or understanding that such services should be paid for or expenditures repaid. But if you find that the claimant did work in improving his wife’s property, or paid out money for material used in improving her property, upon an understanding between them that he should be repaid such expenditures and be compensated for his work, then claimant would be entitled to pay for his services and expenses in improving the wife’s property, even though the very words of the bargain between them might not be proved or susceptible of proof; and this is what is meant, and all that is meant, by the word 'implied,’ as used in the instruction given you in the request of counsel for the parties in this action.
"In this case the claimant is prevented from testifying to any matters that were equally within the knowledge of Janet Westra, deceased, and a contract, therefore, cannot be maintained by his testimony. He has produced, however, certain witnesses who have related conversations which they testified they had with Mrs. Westra in her lifetime; and if you find from these conversations a conclusion to the effect that Mrs. Westra did agree to pay her husband for the labor performed by him and others, and for which he paid, and for the materials which entered into the construction of said buildings, and if you find such statements to be true, then you are at liberty to find that a contract did exist between himself and his wife, and he is entitled to recover therefor.”
The court also gave the request offered on behalf of the estate, to the effect that, unless the jury found by a preponderance of evidence that the deceased wife of the claimant entered into a specific and express contract to repay any money he might expend in building on or improving the
Had the court given a connected charge, in its own language, covering the .law of the case, the apparent inconsistencies would undoubtedly have been avoided. The learned circuit judge said to the jury that he gave these instructions in the very language of the requests of counsel, because this Court had ruled that it was the duty of the courts to do so whenever it could be done. If any such dicta are found in the decisions of this Court, we hold, as we have frequently done, that it is not the law. If the circuit judge, in his oral charge, correctly states the law which is applicable to the case, it is not error to refuse the specific requests. Ellis v. Whitehead, 95 Mich. 105, 115; Stevens v. Pendleton, 94 Id. 405; People v. Hubbard, 92 Id. 326; Shearer v. Middleton, 88 Id. 621. Upon this question, we call special attention to the language of this Court in People v. Hubbard, supra.
The court, as appears from the above charge, left it to the jury to determine from certain conversations had with Mrs. Westra whether she agreed to pay her husband for the labor and materials. These conversations are not given in the record, and there is only a briet statement that testimony was given, in the nature of admissions by her, tending to prove that he did not expect to furnish the materials or do the work gratis, and that she did not expect him to do so. The record does not show that this was all the evidence in the case bearing upon this alleged agreement. We must therefore assume that there was sufficient in the record upon which to base the charge of
1. Names of claimants or creditors, and character of claims.
2. Amount claimed.
3. Amount thereof disallowed.
4. Amount of offset.
5. Amount thereof disallowed.
6. Amount of final balance, favor of creditor.
7. Amount of final balance, favor of estate.
How. Stat. § 5896, makes it the duty of the administrator or executor to exhibit the claims .of the deceased in set-off to the claims of the creditor. No formal issue was ffemed in the circuit court, to which the administrator had appealed. It does not appear that any bill of particulars was demanded by either party, either before the commissioners or in the circuit court. Under these circumstances, we think it was error to exclude evidence of set-off. Where no .formal issue is made in the circuit court, the case must be tried in the same manner as if it were before the commissioners, and, under the statute above cited, an administrator is not required to-give notice of set-off until the court, upon motion, shall order him to do so, or until an issue has been framed in the circuit court which precludes any claim of set-off.
Judgment reversed, and new trial ordered.