Opinion
Docket No. 25, Calendar No. 39,213.
Submitted January 6, 1937.
Decided March 1, 1937.
Appeal from Kent; Brown (William B.), J. Submitted January 6, 1937. (Docket No. 25, Calendar No. 39,213.) Decided March 1, 1937.
In the matter of the estate of Henry May, deceased. Joseph May presented his claim for board, room, clothing and other incidentals. Aetna Laymon, executor, objected thereto. Judgment for defendant executor in circuit court. Plaintiff appeals. Affirmed.
Irving H. Smith, for plaintiff.
Cornelius Hoffius ( Russell Van Kovering, of counsel), for defendant.
Plaintiff, Joseph May, presented a claim against the estate of Henry May, deceased, for board and room from July 11, 1916, to and to include May, 1931, except 40 1/2 weeks, to-wit: the months of February to October inclusive in the year of 1918, 733.5 weeks at $5 a week, $3,667.50; for tobacco purchased at 15¢ a week for 733.5 weeks, $110.02; to overalls and shirts purchased for deceased, $2.50 a year for 15 years, $37.50 — total, $3,815.02.
Joseph May was a farmer in Cascade township, Kent county, and Henry May, a relative, lived there with him. There is no testimony Henry ever did any particular work around the promises. He occasionally filled the woodbox and brought a pail of water. Apparently Joseph May used to furnish Henry with clothing and tobacco, but they were not charged to him. When they were given to him, the testimony is that Joseph said to Henry, "Here is a present for you." Henry lived there as a member of the family. He had some property, shares in a building and loan association. He was treated just like any other member of the family. Plaintiff, so far as the record shows, never made any charges against deceased, never had any account with him, never charged him for the clothing or tobacco, no credit was ever given to the deceased for any work he did. As found by the trial court:
"The testimony is barren of evidence to establish a contract between the parties, to the effect that the deceased expected to pay and that the claimant expected to receive pay."
Many authorities applicable to cases of this kind are collected in McInerney v. Detroit Trust Co., ante, 42.
It is insisted there was an implied contract upon the part of the deceased to pay plaintiff. The services must have been rendered under such circumstances as to indicate the deceased himself expected to pay for the services rendered and the person making the claim expected to charge for and collect pay for the board and room, overalls and tobacco. The proof of these expectations upon the part of the several parties must be sufficient to overcome the presumption that the services, clothing and tobacco were gratuitous. There are, of course, the claims of admissions made by testator. But this proof is not entitled to serious consideration, and, if anything, tends to rebut the existence of a contract, rather than support it. The burden of proof was upon plaintiff and unless the claim, or some part of it, was supported by substantial evidence, the judgment of the trial court who heard the witnesses and determined the questions of fact and law must be affirmed. It is affirmed, with costs.
FEAD, C.J., and NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, and CHANDLER, JJ., concurred.