Nelson v. Christensen

Siebecker, J. The defendant avers that the court erred in admitting the testimony of plaintiff and of the witnesses Lindhart and Mr. and Mrs. Hanson respecting conversations pertaining to a contract of deceased with plaintiff. The exception is urged upon the grounds that the court’s rulings violate sec. 4096, Stats., in that the plaintiff participated in the communications which were had with the deceased. We are of the opinion that the court improperly permitted plaintiff to testify to one conversation between deceased and Mr. and Mrs. Hanson in which plaintiff took part, but it is manifest her evidence refers merely to a statement which the deceased in effect stated repeatedly to others, and manifestly plaintiff’s testimony did not affect the verdict. We cannot say that the verdict would probably have been different had this evidence been excluded. 'The exception to the conversations between decedent and Lindhart and the Hansons upon the ground that plaintiff was present and participated in and influenced them, is not sustained. The situation disclosed indicates that plaintiff did not participate in these conversations and that her presence in, no way influenced the decedent in making the statement testified to. It is considered that the court committed no prejudicial error in admitting the evidence embraced in the exceptions urged as error. It is contended that the court erred in refusing to direct a verdict, for the reason that there is no evidence to support an express contract between plaintiff and her mother for payment for the alleged services Eendered by plaintiff and for the disbursements plaintiff claims to have made pursuant to such contract for the benefit of her mother. An examination of [376] the record shows that plaintiff paid out various sums of money for articles of furniture, house furnishings, for services in and about the decedent’s home and upkeep thereof, and for money advanced to pay demands against decedent. The evidence tends to support the claim that these disbursements were made in reliance on a promise of decedent to plaintiff that the title to the house and lot occupied by them as a home should be transferred to plaintiff either by deed or •will. The mother failed to transfer the title to plaintiff, and shortly before her death devised it to her children, including the plaintiff, in equal shares. “Proof of expectation on the one hand to render compensation, and on the other to receive it, is competent evidence, in connection with the facts and circumstances of the case, to give color to them, tending to show that such expectations ripened into a mutual understanding — an express contract.” Estate of Kessler, 87 Wis. 660, 59 N. W. 129; Loper v. Estate of Sheldon, 120 Wis. 26, 97 N. W. 524. We think the evidence sufficient to sustain the verdict finding that there was a contract between plaintiff and the decedent that plaintiff should receive compensation for services rendered and disbursements made for the mother’s benefit, and that the specified services were rendered and the disbursements made by plaintiff in reliance on the contract.. The account of the plaintiff’s claim as presented to the county court shows that the first item bears the date August, 1893, and exhibits items for each succeeding year up to March, 1899. At this point there is a break in the account which continued to January, 1907, in which month two items are charged which are followed by ten items before July 1, 1908; the next item bears the date June 28, 1909. In the light of the fact that the property which it was contemplated to bestow on plaintiff under the contract is real estate and hence the contract is void under the law, plaintiff must be relegated to seek recovery on quantum meruit under the rule as established in the foregoing cases. This state of her rights, however, limits her to recovery for such items as accrued [377] within the six years immediately preceding the death of her mother on November 9, 1914, unless the services were in their nature continuous to the time of the death of the mother and the disbursements constitute a mutual running account. The evidence shows that the claim lacks in both these features and her recovery is necessarily limited to the items which accrued within the six years immediately preceding November 9, 1914. See Loper and Kessler cases, supra. Since there is no dispute as to the amount of the items, we are enabled to modify the judgment by reducing the recovery to the amount of the total of the items proven to have accrued within the last six years of the mother’s life. These amount to $382.96. This sum is subject to the legal rate of interest from the time there was a denial of the claim in county court, June 2, 1916, which amounts to $68.57, making a total of principal and interest of $451.53 as damages. The costs allowed the plaintiff in circuit court are $56.46. The full amount to which plaintiff is entitled is $507.99, and the judgment is modified accordingly. As so modified the judgment is affirmed. By the Court. — It is so ordered.