Hardiman's Admr. v. Crick

Opinion op the Court by Vm. Rogers Clay, Commissioner Affirming. Plaintiff, William Crick, brought this suit to recover from the estate of Martha S. Hardiman, deceased, the sum of $500 for services which he claims to have performed under a contract with Mrs..Hardiman, from November, 1901, to April, 1902. These services consisted in moving Mrs. Hardiman from her home to plaintiff’s home, and taking care of and nursing her and feeding certain stock. The petition states that the estate of M. S. Hardiman is justly indebted to plaintiff in the sum of $500 under contract entered into between M. S. Hardiman and plaintiff for certain services,' setting them forth. It then says that said services were rendered to said M. S. Hardiman by plaintiff within five years last past, at her special instance and request, and for which she expressly promised to pay plaintiff the reasonable value thereof, which was not less than $500. There were two trials of this case. The first resulted in a verdict in favor of plaintiff for $352, which was set aside by the trial judge. The second trial resulted in a verdict and judgment for plaintiff in the sum of $287.50. From this last judgment this appeal is prosecuted. Mrs. Hardiman, whose estate is sought to be [361] charged in this action, was the second wife of George "W. Hardiman, and a step-mother of plaintiff’s wife. The claim therefore, is one by plaintiff against his stepmother-in-law. According to the testimony of three or four witnesses, Mrs. Hardiman told the plaintiff that, if he would come and move them from Barnsley to his home and keep them, she would pay plaintiff well for it. Plaintiff filed an itemized statement showing the character and kind of services rendered by him in conformity with the agreement alleged to have been made between him and Mrs. Hardiman. Appellant contends that the demurrer to the petition should have been sustained. We are of the opinion, however, that any defect in the petition was cured by the answer and verdict. It is next insisted: That this case falls under the rule laid down in Price v. Price, 101 Ky. 28, 39 S. W. 429, 19 Ky. Law Rep. 211, and other cases of this court, holding that, where the relationship between the parties is such as to raise the legal presumption that they lived together as a matter of mutual convenience, the law will not imply a promise of compensation, but that much stricter proof will be required to establish a contract to pay than would be required between strangers; that under this rule the proof in this case is not sufficient, and the jury should have been peremptorily instructed to find for the defendant. The relationship in this ease was that of stepson-in-law and stepmother-in-law. In our opinion this relationship is entirely too remote to create the presumption that the services rendered by plaintiff were a mere gratuity. That being the case, the rule requiring stricter proof of the contract than in ordinary cases does not apply. We think there was sufficient proof of an express promise on the part of [362] Mrs. Hardiman to pay the plaintiff, and we are confirmed in this view by the verdicts of two juries who reached the same conclusion. Nor do we think there is anything in appellant’s contention to the effect that Mrs. Hardiman’s contract was invalid because, under section 2130 of the Kentucky Statutes of 1903, the husband is made liable for necessaries furnished to the wife after marriage. This may be true, but it does not deprive the wife of the power to make a contract to pay for such necessaries. By section 2128 of the Kentucky Statutes of 1903, she is empowered to make contracts and sue and be sued, as a single woman, except that she may not make any executory contract to sell or convey or •mortgage her real estate, unless her husband join in such contract. By section 2137, her estate is made liable for her debts and responsibilities contracted after marriage. Having the power to contract, and having made the contract to pay for the services rendered by plaintiff, her liability to him is not in any wise affected by the fact that the law imposes upon her husband as between him and his wife the primary obligation to pay for necessaries furnished her. The instructions to the jury fairly embodied the issues involved, and, upon a consideration of the whole case, we are unable to find any error prejudicial to the substantial rights of appellant. Wherefore the judgment is affirmed.