Potts v. Buckley

Gager, J. Error is assigned on the denial of the defendant’s motion to set aside the verdict as against the law and the evidence and the weight of evidence. The record shows that there was a substantial conflict of evidence, and that it was such that the jury might have reasonably and fairly found the issues for the plaintiff. In such case the court could not under our settled rule have granted the motion, and there was no error in the denial complained of. Three errors are claimed in the charge: The plaintiff requested the court to charge that “one who assents or acquiesces in the rendition of beneficial services for him by another, is hable to pay what they are reasonably worth.” The court so charged, with the following comment: “But in order to apply this principle, it is necessary that the plaintiff should show that the services were not included in any arrangement or bargain *178 between other parties. I say it is necessary that the plaintiff should show it, — I don’t know whether the burden is on the plaintiff, but it is necessary that it should appear at the end of the case.” This comment was undoubtedly made in view of the defendant’s claim that plaintiff’s services were rendered as wife of the farmer and not by virtue of any separate arrangement, or as a separate business of hers. What the defendant objects to, conceding the correctness of the general proposition, is that the court, after saying “I say it is necessary that the plaintiff should show it,” interpolated the comment: “I don’t know whether the burden is on the plaintiff, but it is necessary that it should appear at the end of the case.” The court, at the beginning and end of the charge, had correctly stated the rule as to the burden of proof. The defendant complains that here is an incorrect instruction as to this point as to proof of separate business, which was confusing and misleading, and that under the circumstances the court committed a reversible error in saying it did not know whether the burden was on the plaintiff; that the clear effect of this was to counteract the rest of the charge as to burden of proof. The language might very naturally be construed by the jury as a weakening in this particular of the requirement, elsewhere stated, as to a fair preponderance of the evidence. The particular referred to was a vital point, and we cannot say that the distinction apparently drawn, though probably inadvertent, may not have prejudiced the defendant’s defense in this particular, and therefore the charge on this point was erroneous. The court, also referring to the same point as to when the services were rendered, said: “But if you find, gentlemen, that these services all came in naturally and properly and in a normal way with the bargain *179 that was made with the husband, then it would be understood that they were rendered gratuitously or under circumstances which imply the gratuitous rendition of the services.” The defendant claims that the use of the word “gratuitously ” was misleading and prejudicial as, in substance, stating that if the plaintiff’s services came naturally, that is, were the incidental services to be expected of the wife of the farmer, then they were rendered gratuitously, whereas, if rendered under husband’s contract as farmer, they were paid for through him, and the jury would be reluctant to find plaintiff’s services were given free. We do not think there is any merit in this claim. Gratuitously, as here used, clearly means without right or well-founded expectation of compensation other than as incorporated in the farm services paid for under the defendant’s contract with the farmer. There was no error in this clause of the charge. The court had correctly charged as to the effect of acknowledging that a debt was due and unpaid as taking a case out of the statute of limitations, and then continued: “In considering this point you are to bear in mind, if you bring it into connection with the acknowledgement of the letter, as indicating whether or not there is any promise at all in the letter — not as taking refuge in the statute of limitations and insisting upon its protection, but as bearing upon the question whether there was any promise at all contained in the letter — whether or not the fact that the defendant spoke of its not having been presented before does not carry the idea that thereby any promise to pay which otherwise might be inferred from the language, was expressly disaffirmed.” The plaintiff had introduced in evidence three letters from the defendant. The defendant complains that the court erred in construing and declaring the letter or letters *180 as an acknowledgment of the debt. No one of the three letters is an acknowledgment of a debt due and unpaid, and it was manifest error so to construe them to the jury. In the letter of July 3d, the defendant wrote as follows: “I was surprised to read in your note of June 29th that the report about a legal suit by you against me was news to you. It should not have been, as it was so reported or intimated by some member of your family. I wish to say that a member of your family has reported to me that you were planning to leave the farm. You intimate in your note that I am your debtor. If so, will you please send me an itemized bill showing the amount I owe. Why has not the claim been presented or referred to before now.” In a letter of July 13th, this: “Your letter of the 12th July at hand this morning and I am sending this to ask that you send me an itemized statement showing the amount of your claim. After all these years it seems strange that you should bring this matter up at this time. Why have you not called my attention to it long ago.” And on July 17th, this: “As yet you have not as requested rendered me a statement as to the amount of your claim against me. Will you please do so as soon as you can, and oblige.” The utmost that can be claimed for this language is that plaintiff had been making some claim; that the defendant was surprised and wanted information. This is far from acknowledging any debt as due and unpaid, and it was error to so characterize these letters, or any one of them. Objection was made as to the three letters above referred to as immaterial and irrelevant. They were admitted as purporting to show that the defendant knew the plaintiff had a claim, and to sustain some statement the plaintiff had previously made, in court. Though the letters were not capable of being construed as an acknowledgment, as the court construed them *181 in the part of the charge referred to above, we cannot see why the letters were not admissible as part of the negotiations between the parties about the plaintiff’s claim and were clearly relevant to the question in issue. That an improper use was made of them does not affect their relevancy as part of the series of communications, oral and written, from the whole of which the question of new promise must be determined, and there was no error in admitting them. The plaintiff had testified fully as to her conversations with the defendant, and as to the work done by her, and the payment by her of the proceeds of the butter and milk to the defendant, both on direct and cross-examination. Upon redirect she was asked: “This business of making the butter and the care of the chickens and the other things that you did around there yourself, whose business was that? ” To which the witness answered “Mine.” This was objected to as calling for a conclusion and not the facts from which the jury might draw a conclusion, but the court admitted the question over the objection. Ownership of personal property is ordinarily a question of fact to which a witness may testify; Mathews v. Livingston, 86 Conn. 263, 273, 85 Atl. 529, and cases there cited; and this is so even though the ownership is the very matter in controversy. DeWolf v. Williams, 69 N. Y. 621; 22 Corpus Juris, p. 534; Pichler v. Reese, 171 N. Y. 577, 64 N. E. 441. See also Jantzen v. Emanuel German Baptist Church, 27 Okla. 473, 112 Pac. 1127; Amer. Anno. Cas. 1912C, 659 to, and note on, p. 664. The question called for a fact peculiarly within the knowledge of the witness arid was properly admitted. There was error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred.