100 Wash. 359 | Wash. | 1918
Respondent, mother of the deceased wife of William Neihoff, deceased, brought this action against the administrator of William Neihoff’s estate to recover the value of household services rendered the deceased and his family prior to the death of the deceased and his wife. In her complaint, she alleged that the services were rendered at Danville, Illinois, between August, 1898, and December 24, 1905, and were of the reasonable value of $60 per month; that the consideration for such services was an oral promise made by William Neihoff in August, 1898, that he and his wife would provide respondent with a home and suitable support during her life. She further alleged that, shortly after December 24, 1905, the Neihoffs removed to Bellingham, Washington, and that William Neihoff, prior to his departure from Danville, orally promised that he and his wife would make and execute wills and make respondent their beneficiary and heir. Mrs. Neihoff died intestate at Bellingham, in October, 1906. William Neihoff died intestate at Bellingham, in April, 1915. Respondent filed a claim with the administrator for
“services as nurse and housekeeper from August, 1898, to December, 1905, both inclusive, at the rate of $60 per month, amounting to $5,340.”
The only evidence in support of the agreement for compensation, claimed to have been made in August, 1898, at the beginning of the services, was that of Mrs. Emma Schultz, a daughter of respondent, who testified as follows:
Mrs. Schnltz also testified to the second promise made at Danville, Illinois, as follows:
“I said to him ‘Supposing you both die, what are you going to do then?’ and he said ‘We have made that all out, Minnie and I have talked about it, and we are going to make a will before we go away, and we are going to have that all fixed up before we go, and if we both die mother will be well taken care of. ’ ”
During the examination of Mrs. Schultz at the trial, she testified that she visited William Neihoff at Bellingham in August, 1909; that, during this visit, she had a number of conversations with him relative to his making some provision for a settlement of respondent’s claim; that William Neihoff then said to her:
“ ‘I am awfully sick now, the doctor has given me up and I cannot live long. The doctor says I cannot live longer than three months, and I don’t want to go to the trouble of borrowing money, and we must make some other arrangement with mother. I know I owe her a great deal; I know she helped me a great deal, and I know I owe her a great deal.’ And then he said the next time we were together, he said—and talked over what he was going to do about mother—and he said ‘I will tell you what I am going to do’ he said ‘I am going to make a will, if that will suit your mother, I am going to make a will and in that will I will provide for mother. Now, mother can have everything there is I have after I am dead and gone—’
“He said ‘When you go back you ask your mother if she will be satisfied with me making a will and leaving
That, on her return to Illinois, she told her mother what Neihoff had said relative to making her mother a beneficiary in his will, and that her mother expressed satisfaction with the offer and she so notified Neihoff. With this testimony in the record, counsellor respondent, at the close of his case in chief, moved to amend the complaint “to conform to the proof to show the promise and agreement was made in Bellingham for the making of the will.” This amendment was allowed. Appellant then challenged the sufficiency of the evidence and interposed the bar of the statutes of - frauds and of limitations, all of which being denied, the trial proceeded, resulting in a verdict and judgment for respondent.
We will first dispose of a motion to dismiss the appeal, made on the ground of failure to serve the sureties upon respondent’s cost bond—she being a nonresident—with notice of the appeal. Appellant has filed in this court a waiver of any claim against the surety and has stipulated that the cost bond be cancelled. With such a record, the motion is ruled by Roberts v. Pacific Tel. & Tel. Co., 93 Wash. 233, 160 Pac. 753, and is denied.
Under the relationship existing between respondent and the Neihoffs, the rendition of services of the character here disclosed implies no contract for compensation. The law presumes that, as between persons so related, the service was a gratuity, and before any recovery can be had, there must be proof either of an express contract or of facts and circumstances from which a contract for compensation may be implied. Morrissey v. Faucett, 28 Wash. 52, 68 Pac. 352; McBride v.
Eealizing such to he the law, respondent sought to meet it, first, hy the testimony of Mrs. Schultz as to the promise made by the deceased at Danville, Illinois, in August, 1898. That this was the theory of the cause of action, prior to the amendment of the complaint, is further evidenced by the claim submitted to the administrator in order to meet the mandatory requirement of our statute that no holder of any claim against the estate of a deceased person shall maintain an action thereon unless the claim shall have been first presented to the executor or administrator. The claim filed by respondent is as follows:
“Exhibit A '
“In the Superior Court of the State of Washington in and for Whatcom County. In Probate.
“In the Matter of the Estate of William Neihoff, deceased. No. 2889. Claim of Sophia Zuhn.
“William Neihoff, deceased, debtor, to Sophia Zuhn, for seven years and five months services as nurse and housekeeper from August, 1898, to December, 1905, both inclusive, at the rate of $60 per month, amounting to.......................................$5,340
“The above mentioned and described services were performed by claimant for said William Neihoff and family under the express promise and agreement of said William Neihoff to provide for and support claimant and furnish her a home during the remainder of her life. That at the time the performance of said services ceased, as above set forth, said William Neihoff orally promised and agreed that, in consideration of said services so performed, he would make and execute his last will and testament and would name claimant in said last will and testament as his sole beneficiary and only heir, and that claimant relied upon Said promise so made as aforesaid. That said William Neihoff failed to provide for claimant and furnish her
“State of Illinois, County of Vermillion, ss.
“Sophia Zuhn, being first duly sworn, on oath says, that she is the claimant.named in the above and foregoing claim; that the amount thereof, to wit: the sum of $5,340, is justly due; that no payments have been made thereon, and that there are no offsets to the said claim to the knowledge of said claimant.
“Sophia Zuhn.
“Subscribed and sworn to before me this 23d day of February, 1916. S. F. Schecter.
“Notary Public for Vermillion Co., 111.,
“ (Seal) residing at Danville. ’ ’
At the trial, for some reason, possibly to overcome the bar of the statute of limitations, the Danville promise was abandoned and respondent sought recovery upon the promise made at Bellingham in August, 1909. This change presents the first'claim of error, viz., that the claim submitted to the jury, and upon which the verdict and judgment rest, was never presented to the administrator. It seems to us this claim of error must be sustained. Respondent argues, in support of the judgment, that the claim upon which respondent bases her cause of action is the identical claim presented to the administrator; and further, that, no objection being made below upon this ground, none can be made for the first time in this court. The fallacy of respondent’s first contention is in this. There can be no recovery for the services rendered unless the presumption of a gratuity is overcome by proof of either an express or an implied contract to make compensation. The essential
As to respondent’s contention that appellant did not raise this objection in the court below, the complaint set forth a cause of action upon the promise set forth in the claim. There was, therefore, no opportunity to raise the question by any pleading, nor was there any necessity to object to any insufficiency in this respect until respondent abandoned the contract set forth in her complaint and referred to in her claim filed with the administrator. As soon as the respondent changed
The Danville agreement, relied upon by respondent, to support respondent and give her a home was breached and a cause of action arose upon it when the Neihoffs moved to Bellingham without fulfilling their contract. Henry v. Rowell, 31 Misc. Rep. 384, 64 N. Y. Supp. 488.
The action arising out of contract, express or implied, but not in writing, would fall within the three-year statute of limitations. More than three years elapsed between the breach and the making of the new promise in August, 1909. The statute is therefore a bar, unless the new promise is sufficient to avoid it. When the new promise was made, it created a new contract upon which, and upon which only, the action can be maintained. That new contract, like every other contract, must have the essential elements of a contract before it can be enforced. Liberman v. Gurensky, 27 Wash. 410, 67 Pac. 998; Thisler v. Stephenson, 54 Wash. 605, 103 Pac. 987.
The essential element of such a contract, under our statute (Rem. Code, § 176), is that the promise must be ■in writing. This new promise not being in writing, and the action being maintainable only upon the new promise, the action must fail. Respondent seeks to avoid this rule by contending that, notwithstanding the bar of the statute upon the first promise, “the original claim and cause of action furnished a sufficient consideration for the new promise.” The trouble with
Judgment reversed. Eemanded with instructions to dismiss.