Schuchler v. Cooper

Lore, C. J., charging the jury : Gentlemen of the jury:—In this action, Henry T. Schuchler, the plaintiff, seeks to recover from Alexander B. Cooper, administrator of Robert Coburn Dickson, deceased, the defendant, for personal services and for board, which he rendered and furnished to the deceased in his lifetime, and which are itemized in his bill of particulars as follows: Board from June 10, 1892, to May 25,1900, at $10.00 per week, ................................. $4120.00 Nursing, May 25th to June 5, 1900, at $5.00 per day,............................................. 55.00 Care and attention, cleaning up and waiting upon deceased, from June 19, 1892, to May 25, 1900, at 75c per day,............................ 1463.00 Probate,................................................... .15 Aggregating,......................¡...................... $5638.15 One of the pleas relied upon by the defendant is the statute of limitations. Under that plea the defendant claims that no recovery can be had for any parts of the items named in the bill of [51] particulars, which were furnished or rendered more than three years before the date of the commencement of this action, which was September 13, 1901. Running back three years from that date would bring you to September 13, 1898. The statute of this State provides that no action shall be brought in cases like this, after the expiration of three years from the accruing of the cause of action. Portions of the claim in this case appear upon the face of the bill of particulars to be barred by the statute. We are unable to find in the evidence any acknowledgment of the part so claimed to be barred by the statute as a subsisting demand made either by the deceased in his lifetime, or by his administrator the defendant since his decease, which would remove this bar. We say to you, therefore, that in reaching your verdict, you are not to consider any part of the plaintiff’s bill for services rendered or board furnished prior to September 13, 1898. Should you be satisfied from the evidence that after September 13, 1898, and before the death of the defendant, which it is not disputed occurred June 5, 1900 ; the plaintiff rendered services or furnished board, or both, as claimed in his bill of particulars, for which he had not been paid, he would be entitled to your verdict covering that period of time. In ascertaining the value of such services or board, you should be governed by the price fixed by the parties, if any price was agreed upon and shown; if no price was agreed upon, your verdict should be for such sum as the services rendered and board furnished were reasonably worth as disclosed by the evidence. Verdict for plaintiff for $925.15 Note. The above case was taken up to the Supreme Court on a writ of error and at the June Term, 1904, thereof the writ of error was dismissed on motion of defendant’s counsel, on the ground that the plaintiff Schuchler had no standing in said Court; he having assigned all his interest in the verdict immediately after same was obtained, but before judgment, and before the writ of error was taken.