76 Ind. App. 538 | Ind. Ct. App. | 1921
Appellee filed her claim against the estate of Chester L. Brown for services rendered by her as housekeeper for a period of 572 weeks immediately prior to June 1, 1917, at $15 per week, totaling $8,580. The claim as filed is in two paragraphs. The first paragraph alleges that appellee performed the services and asks that she be allowed the value thereof. The second paragraph sets out in detail the circumstances surrounding her employment by appellant’s decedent the character of the work performed by her.
Appellant answered: (1) General denial, (2) payment, (3) settlement June 2, 1917, at which time decedent gave appellee his note for $1,000, (4) and (5) statute of limitation. There was a verdict in favor of appellee for $2,340, and judgment accordingly.
The only question presented by the assignment of errors relates to the action of the court in overruling appellant’s motion for a new trial. The evidence discloses that appellee acted as housekeeper for the father and mother of the decedent for many years. Following their death she continued to serve the decedent in the same capacity from June, 1908, to June, 1917, when he married and broke up housekeeping at Huntington. On June 2, 1917, the decedent gave appellee his note for $1,000. due five years from date with six per cent, interest. The consideration for this note is not proven with any degree of certainty. There is evidence tending to show that the decedent prior thereto had borrowed about $285 from appellee. There is no other evidence as to the consideration for which this note was given. June 1, 1918, the decedent paid the interest on this note. He was a traveling man and away from home most of the time. Generally he was at home the last of the week and over Sunday. The administrator without any objection on the part of appellee testified that the decedent said he had borrowed $275 or $285 from appellee; that part of the note was for money he had borrowed from appellee; that he had included that in the note he had given her and that he had' settled with her in full to the time when he broke up housekeeping. On May 31, 1918, the decedent wrote a letter to appellee and
We have given this brief statement of the evidence concerning this note, in order that a better understanding may be had of the instructions given and refused in reference to it.
Appellant contends that the execution of this note is prima, facie evidence that it was given as a settlement of all indebtedness which his decedent at that time owed appellee, and that the court erred in refusing to give instruction No. 1 tendered by him, which after calling attention to the $1,000 note, in substance, told the jury that where parties having accounts meet and a note is given the presumption is that there was a settlement and that all matters between them are included in the note, that they should act on the presumption that there was a full settlement and the note was final, and in the absence of fraud or mistake was binding on both parties, and if the appellee had not shown any fraud or mistake by a preponderance of the evidence she was bound by the settlement.
Instruction No. 9, given at the request of appellee, is in part as follows: “The burden is upon the defendant to prove by a preponderance of the evidence that said note was given as a settlement in full and the evidence must go a step farther and show that said Barbara E. Paul agreed to said settlement and accepted said note as a settlement.”
There is some evidence to the effect that the decedent had borrowed not to exceed $300 from appellee, and if the jury had been fully and correctly instructed as to the presumption arising from the acceptance by appellee of the $1,000 note, the result might have been different. The evidence is not such as to convince us that the cause should be affirmed on the theory that a correct result has been reached.