Rosencrance v. Johnson

Opinion by Mb. Justice Mitchell, The plaintiff’s claim was one which raised a twofold requirement of strict proof, in that it was in the first place a claim for [532] extra compensation over and above the amount expressly fixed by contract, and secondly, it was a claim against the estate of a decedent for services of a kind which in the ordinary course of life are paid for currently as they are rendered. 1. There is no more fruitful source of dispute and litigation than claims for “ extras,” and where they are superadded to claims upon an express contract for services of the same or a similar kind they should be made out clearly and explicitly before they are allowed. The plaintiff gave evidence of an express agreement by Houser, the defendant’s decedent, to pay $14.00 a month for “ board, washing and mending.” Prima facie this covers all such household attendance and attention as are usual in families of the same situation and circumstances of life, including the chances and changes of health and sickness. In fact, the plaintiff’s own witnesses, professing to use the language of the decedent, spoke of the agreement as one that had provided him with a “home.” The extra services claimed for by plaintiff were of the same class, and differed only in degree, arising from the alleged sickness of the decedent during a considerable part of his latter years, whereby he required more attention. This did not change the nature of the services nor take them out of the agreement. Where such an agreement becomes burdensome'by reason of changed circumstances, the remedy is to make a new one, and the new one should be clearly proved. The case relied on by appellee, Harrington v. Hickman, 148 Pa. 401, is very close in point, and illustrates this requirement. The extra services there were more different in character from those covered by the contract of hiring than those claimed here, but the right of recovery was put expressly by our late Brother Williams on the evidence of a new and additional contract to pay for them. In the present case there was no attempt to prove such a contract. 2. The claim for board, etc., against the estate of the decedent, belongs to that class that we have so often had occasion ■to say requires strict proof: Carpenter v. Hays, 153 Pa. 432; Mueller’s Est., 159 Pa. 590; Hughes’s Estate, 176 Pa. 387. The plaintiff may lie considered as having proved a contract for $14.00 a month, and as having given some evidence, not very strong, but sufficient to go to the jury, that the payments on this account were in arrears at the time of decedent’s death. [533] The latter’s declarations as testified to by the witnesses went to this extent, but by no reasonable construction can they be carried any further. There is nothing in any of them to permit the jury to find an indebtedness back of the period of limitation. The strongest of them, during his last sickness, that he “ would like to live till he got up, for he owed them a big bill, so he could settle it up,” and again to another witness “ that he owed them a large bill ” are fully satisfied by an application to the arrears on the express contract for board, etc., for a period not exceeding six years. There is no approach to the identification of any other debt, or the extension of this one beyond that period. Plaintiff also gave evidence of the receipt of $10.00 from Houser, with the direction to credit it on his account, and at another time a hog with similar direction. The learned judge submitted these payments to the jury to say if they were made on the very debt in suit, and in this connection, answering defendant’s fifth point, he told the jury they might consider if there was any evidence of any claims or demands that plaintiff had against the decedent, except the claims in suit. This was directly against the case of Burr v. Burr, 26 Pa. 284, where a payment on “ that note which I hold of thine ” and the absence of evidence that there was any other note than the one sued on were held'not sufficient to identify the debt. See also Landis v. Roth, 109 Pa. 621, and Ward v. Jack, 172 Pa. 416. To take a debt out of the bar of the statute of limitations the identification of it must be made by the debtor at the time of the promise, or payment or act relied on. An identification by mere inference of the jury from other collateral matters is not sufficient. It is not necessary to go over the assignments of error in detail. The evidence of the character of decedent for punctual payment of obligations, the income from his farm, the fact that he kept account books which could not be found after his death, and his declarations as to what he was going to do when he left the witness’s house, were properly excluded. They had no direct bearing on the issue. The judgment however must be reversed on the two main points, first, the so-called extra services in the way of care and attendance were presumptively within the express contract for $14.00 a month, and no recovery could be had on them without [534] a new contract, of which there was no evidence; and secondly, there was no evidence to prevent the bar of the statute of limitations as to all of the claim for the $14.00 a month which was more than six years old at the issue of the writ. It was error to submit either of these claims to the jury. Judgment reversed and venire de novo awarded.