176 P. 853 | Utah | 1918
This is an action by plaintiff against the defendant, as executor, to recover the sum of $2,236.60, including interest, for services alleged to have .been rendered, and for medicines and supplies alleged to have been furnished, to defendant’s intestate, Esther Byrne, deceased, during her lifetime, to-wit, from and including the 1st day of January, 1913, to and including the 2d day of April, 1916.
Defendant; answering, denies any knowledge or information sufficient to form a belief as to the alleged services rendered, or board or medicine furnished; and further alleges that the plaintiff is the granddaughter of Esther Byrne, deceased, and made her home with said deceased until plaintiff’s marriage with James Wilkin; that deceased, prior to plaintiff’s said marriage, clothed, eared for, and educated her and otherwise treated her as her own daughter; that plaintiff
By way of counterclaim, defendant alleges, in substance, that plaintiff and her husband, for more' than three years, resided with the deceased, occupied and enjoyed her home as a place of residence, and that the reasonable rental value of said home and furniture therein was the sum of $2,500; that during said time deceased furnished plaintiff and her husband goods, groceries, and supplies of the reasonable value of $1,500, no part of which has been paid.
Defendant prayed judgment against plaintiff for the sum of $5,000 and interest thereon and costs.
The case was tried to the court without a jury. The court dismissed defendant’s counterclaim, and found for the plaintiff in the sum of $390. Judgment was entered accordingly.
Defendant appeals, and assigns as error the order of the court overruling the motion for nonsuit, inconsistencies in the findings of fact, and that the same are contradictory and unintelligible, insufficiency of the evidence to sustain the findings, and that the findings and judgment of - the court are against law.
We have not undertaken to state the errors relied on by appellant, as stated by him in the assignments of error, but, the foregoing, in substance, covers and includes all that are deemed material.
On cross-examination plaintiff, speaking of the services rendered by her, testified that while deceased was sick she always told plaintiff she would make it right. Plaintiff stated that deceased deeded her the home and gave all the rest something; that she did not think deceased considered she was deeding plaintiff the home as consideration for services; did not think deceased considered it in that way.
There was other testimony for plaintiff tending to. corroborate the above as to the character and extent of the services rendered; that the same were disagreeable on account of the nature of the disease with which deceased was afflicted; she was unable to control her bowels; frequent cleansing of her body, clothing, and bedclothing was necessary, rendering the service not only arduous, but disagreeable and offensive. .There was also testimony to the effect that deceased gave, or
The testimony above detailed, as to services rendered, supplies furnished, and the value thereof, was contradicted to a greater or less extent by witnesses for defendant.
At the close of the testimony introduced by plaintiff defendant moved for a- nonsuit, assigning as grounds therefor:
“ (1) That no promise on the part of the deceased to pay, either expressly or impliedly, was ever made by deceased to plaintiff, for the services rendered or alleged to have been rendered; (2) that the evidence of the plaintiff shows that the services were gratuitous and were performed without expectation of remuneration; (3) that the presumption that the services were gratuitous, on account of being performed by a grandchild, and in this case where the parties had always lived as parent and child, was not overcome by any proof on the part of the plaintiff that said services were performed at the request of the decedent and that said decedent promised to pay the plaintiff therefor.”
The motion for nonsuit was denied.
Appellant also insists that the court erred in entering judgment for the plaintiff, for "the reason that the evidence is insufficient, in that it shows that the deceased and plaintiff were grandmother and grandchild, and that there was no express contract on the part of the deceased to pay for the services rendered dr goods furnished, or that the deceased ever had any intention to pay therefor, except as she voluntarily paid for them by deeding the plaintiff her home. Appellant insists that the evidence shows the -services were gratuitous.
What we have said in passing upon the motion for nonsuit is equally applicable here, and need not be repeated.
“Where one renders services for another, or supports another, the relationship of the parties is of great weight in determining their intention for the purpose of saying whether a contract to pay is to be implied. The question in all cases is one of intention, but relationship or membership in the family may rebut the ordinary presumption of contractual intention.
*7 “In the ease of parent and child, or persons who stand towards each other in loco parentis, even though the child may have attained majority, it is to be presumed that support furnished or services rendered were intended to be gratuitous, and there can be no recovery therefor without proof of an express contract to pay, or circumstances showing that compensation was expected and intended.”
In answer to this contention it is sufficient to say that this court in Mathias v. Tingey, 39 Utah, 561, 118 Pac. 781, 38 L. R. A. (N. S.) 749, rejected the doctrine that an express contract or promise to pay, in such eases, is necessary, and on the contrary, adopted, as we believe, the more reasonable and better sustained doctrine that the promise to pay need, not be expressed, but may be inferred from circumstances. The facts in that case are so nearly analogous to the facts in the case at bar as to make the opinion therein controlling upon the main question presented by this appeal. It would serve no useful purpose to make a detailed comparison. The opinion, by Mr. Chief Justice Frick, is lucid and to the point that the promise on the part of the mother to pay a daughter for services rendered in taking care of the mother during her last sickness and for some time previous may be inferred from circumstances. The opinion cites the authorities upon which the court relied.. The judgment of the trial court allowing plaintiff compensation in that case was affirmed.
In addition to the Utah case above referred to, respondent cites many cases more or less in point. See specially 11 L. R. A. (N. S.) note 890; In re Rohrer’s Estate, 160 Cal. 574, 117 Pac. 672, Ann. Cas. 1913A, 479.
“(1) That from October 12, 1913, to April 22, 1916, at Bingham, in Salt Lake County, Utah, plaintiff, at the request of said deceased, Esther Byrne, furnished board and medicine and rendered services in caring for and in washing the clothing for said deceased, Esther Byrne; that during
“ (2) That said plaintiff, during the time of rendering the said services and performing said labor, expected to receive compensation therefor, and the said deceased expected and intended to compensate and pay said plaintiff for said services and labor and the care and board and support bestowed upon her by plaintiff; that the said deceased promised and agreed to compensate plaintiff for said board, services, labor, and care by leaving plaintiff her property after her death.”
From the foregoing it will appear that in finding No. 1 the court finds there was no express contract between plaintiff and deceased that the services of plaintiff should be paid for by 'deceased, and no intention on the part of deceased to pay for such services, except by the transfer of certain real property before her death; while in finding No. 2 the court finds that plaintiff expected to receive compensation, and that the deceased expected and intended'to compensate plaintiff, and promised and agreed to compensate her by leaving plaintiff property available after the death of deceased.
In finding No. 4 the court found that deceased failed to make any substantial provision or otherwise to compensate plaintiff for the services. In finding No. 6 the court found that there was due and owing plaintiff by the defendant the sum of $390, with interest thereon. Therefore this much at least can be deduced from the findings: That the services were of the reasonable value of $390; that the deceased was to pay in'property before her death; that she was to pay in property after her death. By the fourth finding the court found she did neither, and by the sixth the court found the above amount was due and owing the plaintiff.
The findings are inartistic, confusing, and apparently contradictory, but a reasonably careful analysis, with the view of ascertaining their meaning, renders them sufficiently intelligible to support the judgment of the court.
The court did not err in dismissing the counterclaim.
We find no error in the record.
The judgment is affirmed, at appellant’s costs.