Summary
In Manone v. Culp, Exr., 350 Pa. 319, 39 A.2d 1, which involved a claim against a decedent's estate to recover for board and lodging furnished the decedent during his lifetime we held that where personal services are rendered pursuant to a contract which provides for payment at a specified time after conclusion of the services, the statute of limitations does not begin to run until the time set for payment.
Summary of this case from Lach v. FlethOpinion
April 13, 1944.
June 30, 1944.
Decedents' estates — Claims — Personal services — Evidence — Sufficiency — Promise of decedent — Agreement — Periodic payments — Presumption — Payment after conclusion of services.
1. In an action against the executor of a decedent's estate to recover for board and lodging furnished decedent in his lifetime, in which plaintiff averred, and offered in evidence, a writing by which decedent agreed to pay plaintiff a specified weekly sum for board and lodging for every week that he stayed with her, the same to be paid out of his estate at the time of his death, provided he remained with her until death, and, if not, to be paid by him immediately after leaving her room and board, and in which the trial court charged that plaintiff's claim must be proved by the weight and preponderance of the evidence, and that in cases of this kind there must be clear, distinct and satisfactory evidence of the contract between the decedent and the plaintiff, it was Held that the charge did not constitute reversible error. [320-2]
2. The presumption of periodic payments, ordinarily applied in an action against a decedent's estate for domestic services or for board and lodging furnished the decedent, is not applicable where the services were rendered under a contract which provided for a single payment to be made at a specified time after conclusion of the services. [323-4]
Statute of limitations — Personal services — Promise to pay after termination.
3. Where personal services are rendered pursuant to a contract which provides for payment at a specified time after conclusion of the services, the statute of limitations does not begin to run until the time set for payment. [322-3]
Argued April 13, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 37, Jan. T., 1944, from judgment of C. P., Northampton Co., Sept. T., 1942, No. 139, in case of Mrs. Frances Manone v. Matthew A. Culp, Executor. Judgment affirmed; reargument refused September 26, 1944.
Assumpsit.
The facts are stated in the opinion by BARTHOLD, J., of the court below, as follows:
The plaintiff, Mrs. Frances Manone, on September 8, 1942, instituted an action in assumpsit against Matthew A. Culp, executor of the estate of Fred M. Foster, deceased, to recover for board and lodging furnished testator in his lifetime from October 1926 to March 26, 1937, at the rate of $8.00 a week. Plaintiff in her statement of claim avers that testator became a member of her household on the first day of October, 1926, and received board and lodging at the above price. She also avers that while the above arrangement was in effect testator executed the following writing dated May 7, 1930:
"I, Frederick M. Foster, do hereby agree to pay Mrs. Frances Manone $8.00 per week board and lodging for every week that I stay or have stayed with her, same to be paid out of my estate at the time of my death providing I remain with her until death and if not to be paid immediately after leaving her room and board.
Signed Fred M. Foster
Witness:
T. K. Hagey
E. A. Amey"
The defendant filed an affidavit of defense averring that the testator received no board or lodging from the plaintiff, and that the above writing was not a valid, legal agreement in existence at the time of decedent's death, but should have been destroyed in the lifetime of testator because not supported by any consideration, in that testator did not secure board and lodging. The defendant further avers that testator occupied his own residence in Hellertown from 1918 to and including 1939. Under the caption "New Matter" the defendant pleads the statute of limitations in bar of the action.
The case was tried before BARTHOLD, J., and a jury. Numerous witnesses were called by the plaintiff to prove that testator received board and lodging at the home of the plaintiff from October, 1926, to March 26, 1937. To substantiate the existence of an agreement for board and lodging between the parties for $8.00 per week, plaintiff also offered in evidence the above writing. Said writing was also introduced along with other testimony for the purpose of showing that the services were rendered and had not been paid for. Testimony was offered likewise to show that the writing was still in force at the time testator left plaintiff's home in March of 1937 and to show that although demands for payment were made by the plaintiff upon the testator, testator repeatedly stated that plaintiff would be paid after his death. The defendant offered testimony to show that the services sued for were never rendered. Several neighbors of the parties, as well as several housekeepers who worked for the plaintiff, were called and offered testimony to the effect that they never saw testator at the plaintiff's home. The defendant also offered testimony to show that testator owned a "shack" located near the home of the plaintiff where he lived and cooked his own meals. The trial court submitted the case to the jury on the disputed questions of fact and the jury returned a verdict in favor of the plaintiff and against the defendant for the full amount of plaintiff's claim, viz.: $4,360.00.
The defendant petitioned the court "for judgment n. o. v. and new trial". We will treat the motion as though filed in the alternative as it is not good practice to embody a motion for judgment n. o. v. and a motion for new trial in the same paper. A motion asking two things, viz.: "for a new trial and for judgment n. o. v." can never be granted in the same case and between the same parties. These are mutually exclusive: Campdon v. Continental Assurance Co., 305 Pa. 253.
The defendant in his brief specifically sets forth six questions for our determination. They will be taken up in the order and in the language in which they are set forth in defendant's brief.
"1. Did the court err in its charge to the jury by stating that the plaintiff's claim must be proved by the weight or preponderance of the evidence?"
It is the general rule in civil cases that the burden is upon the plaintiff to prove his case by the weight or preponderance of the evidence. The defendant contends that since this suit is one against a dead man's estate, the plaintiff has the additional burden of proving her case by direct and positive testimony. Defendant overlooks the fact that this rule of law was enunciated in cases where it was sought to establish such claim by parol evidence, and that in the instant case the claim was not only established by parol evidence but by a writing signed by decedent. Furthermore, we note that the trial court at the end of its charge specifically instructed the jury as follows:
"There is perhaps one more point upon which the Court should instruct you, ladies and gentlemen of the jury. In matters of this kind where a contract is sought to be established for services rendered to a decedent, there must be clear, distinct and satisfactory evidence of the contract for board and lodging between the decedent and the plaintiff, to warrant a recovery by the plaintiff. The plaintiff says that she has established such contract by clear, distinct and satisfactory evidence. The Court has already referred to the written promise as well as the other testimony that the plaintiff has offered to meet that burden."
We therefore answer defendant's first question in the negative.
"2. Did the Court err in charging as a matter of law that the statute of limitations does not apply to this case?"
In answering this question it is important to note the exact wording of the writing signed by the testator on May 7, 1930. Under its terms, testator expressly agrees "to pay Mrs. Frances Manone $8.00 per week board and lodging for every week that I stay or have stayed with her, same to be paid out of my estate at the time of my death providing I remain with her until death and if not to be paid immediately after leaving her room and board."
The testator fixed the time for payment in the alternative and the statute of limitations would not begin to run against the claim until after testator's death or until testator left plaintiff's room and board.
The undisputed testimony is that testator left plaintiff's room and board on May 26, 1937, a time prior to his death. Accordingly the statute would not begin to run until said date. The trial court was therefore correct in charging the jury as a matter of law that the statute of limitations did not apply in this case.
The following cases, in our opinion, definitely support this conclusion: Titman v. Titman, 64 Pa. 480, 486; Hoffner's Estate, 161 Pa. 331, 343; Kauss v. Rohner, 172 Pa. 481, 488.
"3. Did the court err in charging as a matter of law that there is no presumption of payment of board in this type of case?"
The trial court charged the jury that the presumption of periodic payments ordinarily applied in cases involving suits for domestic services or for board and lodging was not applicable to this case, because testator in writing stated that payment was not to be made until his death or if he did not stay in the household of plaintiff until his death, then payment was not to be made until after he left plaintiff's household.
The case of Conkle v. Byers' Exr., 282 Pa. 375, specifically upholds the validity of the trial court's charge. At page 378 the Supreme Court stated the following:
"As the contract here provided for payment at the death of Miss Byers, no presumption of periodic payments arose, nor was any part of plaintiff's claim barred by the statute of limitations."
We therefore answer defendant's third question in the negative.
"4. Did the court err in construing the writing 'Exhibit A' as an agreement when in fact it was but an alleged acknowledgment pleaded to toll the running of the statute?"
An examination of the writing in question clearly indicates that testator agreed to pay plaintiff $8.00 a week for board and lodging for every week that he stayed with the plaintiff or had stayed with her. It also specifically sets forth when payment is to be made. There is ample testimony as to the period during which plaintiff furnished board and lodging to testator, thereby showing that plaintiff acted upon testator's promise. The trial court therefore committed no error in referring to the writing as an agreement.
"5. Did the court err generally in its charge to the jury?"
At the close of the charge, the trial court asked counsel whether there were any additions or corrections to be made in the court's charge. Counsel for the defendant made one request, viz.: that the court charge with respect to the "interest" of the three Manone children who testified in behalf of the plaintiff, their mother. The request was granted. The court then gave counsel an additional opportunity to suggest additions or corrections, whereupon both counsel answered that they had nothing further to offer. After the points for charge were ruled upon, counsel for the defendant objected to the plaintiff's calculation as not being in accordance with the statement of claim. When the court pointed out that the calculation was less than the statement of claim, counsel for the defendant answered "All right". Whereupon plaintiff's calculation was permitted to go out with the jury.
"6. Was the claim for board and lodging properly and sufficiently proved?"
We have already indicated the type and quantum of proof offered by the plaintiff to substantiate her claim. We are of the opinion that the plaintiff offered sufficient testimony to warrant the jury's verdict, except in one regard. There was uncontradicted testimony to the effect that testator was in the hospital for a period of seven weeks. It is patent that the testator did not "stay with" plaintiff during this period and that board and lodging were not furnished to testator during said period. The agreed price for board and lodging was $8.00 per week and the verdict should be reduced by the sum of $56.00.
The only question remaining for our consideration is the following: Did the court err in refusing to affirm the five points for charge submitted by the defendant?
All of the legal questions raised by defendant's points have already been fully discussed in this opinion. No useful purpose would be served by repetition.
For the reasons herein given, we are of the opinion that the trial court did not err in refusing defendant's five points for charge.
Defendant appealed.
Lewis R. Long, for appellant.
R. C. Mauch, of Mauch Goodman, for appellee.
The judgment is affirmed on the opinion of the court below.