Patterson v. Collar

Phillips, J. Appellee filed her claim against the estate of William McClintock in the County Court of St. Clair County, on May 3, 1886, claiming for sixteen years’ service, at $240 per annum. On April 30, 1887, an amended claim was filed for sixteen years’ service, at $312.50 per annum, and for a sum acknowledged to be due to Nancy Collar by William McClintock in his lifetime, in a certain will executed by him, of $5,000. On a trial before a jury, in the County Court of St. Clair County, a verdict was rendered for $2,250, on which judgment was entered. An appeal was taken to the Circuit Court of St. Clair County by the appellant, and a trial had in that court, before a jury, when a verdict wasyendered for'$5,000, together with two special findings. A motion for a new trial by appellant was overruled, and a judgment entered on the general verdict for the claimant. By appeal the record is brought to this court. The facts as shown by that record are, that about 1846 Nancy Stout, then between fifteen and sixteen years of age, having recently lost her father by death, made her home at the house of William McClintoek, whose wife was her aunt, sister to her mother. Nancy Stout continued to reside with the family of William McClintoek about sixteen years, until her marriage. During the time of her residence there Mrs. McClintoek, her aunt, was in feeble health, and the management of the household was largely under her control, and most of the housework was done by her, although during a poition of the time a servant was hired. The evidence show's that during this whole time Nancy Stout, since Napcy Collar, the appellee, was treated as a member of the McClintoek family, and quite the same as if she was a daughter. She made visits at her pleasure, using the horse and buggy of the family, was well dressed, had pin money, and went into general society in the neighborhood. Her clothing was furnished, or the money to buy it, by McClintoek, who, with his wife, wras childless. That appellee w'as treated as a daughter by the McClintocks, was admitted by her counsel on the trial. On the other hand, the evidence also discloses that she well returned the kindness shown her, in her care and attention to the comfort of her aunt and uncle. In 1876 Mrs. McClintoek died . and appellee was presented by William McClintoek with §200 or §225, which had belonged to his wife. About that time, also, appellee, for a year or two, together with her husband, occupied a farm belonging to McClintoek, for which no rent was ever paid or demanded of her or her husband. In 1875 a conveyance of premises, estimated of the value of $1,000 to $1,800, was made for a consideration of $1 and natural love and affection by McClintoek to appellee, and to the issue of her body then born and to be born, in equal parts. The special findings by the jury were, 1, that Nancy Stout, now Nancy Collar, was treated by William McClintoek as a member of his family, while she lived there; and 2, that Nancy Stout, now Nancy Collar, did live in the family of William McClintoek, as a member of his family, during the whole time she lived at his house. These findings in the special verdicts of the jury were clearly warranted hy the evidence; and there is no evidence in this record whatever of a relation of master and servant existing between the parties by express contract, at the time or before the services were rendered. William McClintoclc died February 28, 1886, and appellant was appointed administrator of the estate. This claim for the recovery of the value of appellee’s services must rest on a contract, either express or implied. The rule is well established, that where voluntary services are rendered by those sustaining near family relations, as where a child remains with a parent after arriving at majority, the presumption is that the parties do not contemplate payment or receipt of wages. Meyer v. Temrne, 72 Ill. 574; Mowbry et al. v. Mowbry et al. 64 Ill. 383; Maloney et al. v. Scanlon, 53 Ill. 122; Broughton v. Stuart, 59 Ill. 440; Byers v. Thompson, 66 Ill. 421; Dunlap v. Allen, 90 Ill. 108 ; Cooper v. Cooper, 12 Ill. App. 478; Miller v. Miller, 16 Ill. 296. This rule has also been held to apply to a claim made by a son-in-law for the support of the wife’s parents; and it was further held, that an express contract must be shown in such a case, before a recovery could be had. Faloon v. McIntyre et al., 118 Ill. 292 ; to the same effect is Woolsey v. White, 7 Ill. App. 277; also Fruitt, Adm’r, v. Anderson, 12 Ill. App. 421. In the findings by the jury, in their special verdicts, the relation existing between the parties was found ; and we hold that the rule must be held to apply to cases where a person becomes and is treated as a member of a family, during a long term of years, in the entire absence of evidence showing the existence of the relation of master and servant. This view is supported by Woolsey v. White, and Fruitt, Adm’r, v. Anderson, and by Long v. Long, supra. In the case before us there can be no presumption, from the evidence, that the parties contemplated the payment or receipt of wages; that is, no contract can be implied. And since, under the more recent authorities in this State, the law implies no contract from facts like these, to recover, the evidence must show an express contract. Faloon v. McIntyre and Long v. Long, supra. . The statute of limitations was pleaded by appellant, and to remove the bar of that statute the appellee called as a witness Spencer Ease, who testified that McClintock called upon him to write a will, and, among other instructions given, was this: “I want to give Nancy Collar $5,000, in lieu of any claim of whatever kind on our family, for her kindness to our family.” This is stated to have occurred in 1881 or 1883, but must have been earlier, since the witness said that he and John H inch-cliff e witnessed the will, while the evidence shows that Ilinchcliffe died February, 1878. James P. Bich testified that McClintock, in two conversations with himself, one in 1882 and another in 1884, speaking of a proposed disposition of his property, said “he intended Mrs. Collar should have $5,000.” At one time he brought a paper and made inquiries for a vault in which to deposit it. Jefferson Aultman testifies that McClintock said to him: “Mrs. Collar had always waited upon him a good deal, and he in ten led to see that she was well paid.” To all the testimony of these three witnesses appellant objected at the time; the objections being overruled, error is assigned on account of such rulings. On the other hand, counsel for appellee insists the evidence to be admissible, as in the nature of admissions by McClintock of a sum due and owing'; and on the authority of Freeman v. Freeman, 65 Ill. 106, and Maloney et al. v. Scanlon, 53 Ill. 122, we hold the testimony of Ease and Bich admissible. But we do not find the testimony of Aultman to be admissible for any purpose. We, however, hold none of this evidence sufficient to remove the bar of the statute, the statements being made in each instance to a stranger. Wachter v. Albee, Adm'r, 80 Ill. 47; McGrew et al., Executors, v. Forsyth, 80 Ill. 596; Carroll et al. v. Forsyth, 69 Ill. 127. Jessie Collar, a daughter of appellee, testifies that; about two weeks before his death, William McClintock was at her mother’s house and said to appellee: “ Well, I wish I could do now as I could a few years ago.” And mother says, “ Why?” “Well,” he says, “I would make you a deed to more land than I have given you; but,” says he, “you are well provided for anyhow. Ton will have plenty to keep yon in your old days; I have provided well for you.” He did not say how much or anything of the kind. He says, “you are the only one that has ever done'anything for me.” And he says, “Aunt always intended that yon should have the property that her money bought, or the money.” Counsel for appellee then asked: “Did he say anything about compensating her for the work she had done?” To this question counsel for appellant objected and the objection was overruled, which ruling is assigned as error; but we see no objection except to the form of the question, which was n >t made a ground of objection. The witness then answered: “He said he thought, as he never had given her to amount to anything, he ought to pay her for it, for what work she had done, staying there so long.” Ho proof, however, having been shown of any express contract made at the time of, or prior to the rendition of the service, the testimony of the last witness must also be held insufficient to establish any such contract originally, if such a contract had ever been made; for it can not be held to be an admission of a prior contract existing, and if admitted as evidence of a new promise, still it would fail to create or prove an express contract, wherefore as a new promise it would be without consideration and not binding. But, can it be said that from the entire evidence of the witness, Jessie Collar, a new promise is shown? Here was McClintock expressing a regret at his inability to do as much as he once had been able to do, at the same time declaring, however, that he had provided well for Mrs. Collar; that his wife had always intended the property her own money bought, or the money itself should go to her niece; he thought he never had given her anything to amount to anything, while he thought he ought to pay her for the work she had done, staying there so long. There is nothing in any of that conversation which can be understood as referring to a previously existing contract, by which an indebtedness co.nld be held to exist, and a new promise to pay it. On the contrary this whole testimony only enforces the conclusion that this is a case where a childless old man, appreciating former kindness from one who, by long residence and association, had come to occupy the place of a daughter, in assurance of that appreciation, and in recognition of it, declared that he had, as lie thought, provided well for her support in her old age, and thereby endeavored to requite her for lier kindness. We hold, then, that there is not sufficient evidence in the record to remove the bar of the statute. And to hold that expressions of kindness, like those testified to here, either create a liability or revive one not otherwise proven, would engender in the minds of parents and children such distrust and suspicion as would practically destroy the confidence and affection which ought to exist in that relation. The judgment, therefore, is reversed and the cause remanded. Reversed cmd remanded.