Stone v. Morgan , 13 Ind. App. 48 ( 1895 )

Davis, J.

The claim in this case is in two paragraphs. The first is as follows:

“Estate of William Stone to John D. Morgan, guardian of Samuel Briscoe, Dr., 1886 to 1892. To services rendered under contract with decedent in performing manual labor in attending to his physical wants, to making rails, cutting wood, looking after his farm and pérsonal property, by which the said decedent agreed to will to the said ward the whole of his estate, valued at §13,500.00.”

The affidavit thereto attached is, in substance, that said thirteen thousand five hundred dollars, the balance shown in said account, is justly due and owing to him.

A demurrer was' overruled to this paragraph and proper exception reserved. Appellee, on trial by jury, recovered verdict for $8,112.00, on which judgment was rendered against the estate. The only theory on which the first paragraph can be sustained is that it is an action to recover on the quantum meruit the value of the services rendered. In our opinion this position is not tenable. The first paragraph is a complaint to recover on the alleged special contract therein mentioned. The value of the services is not referred to. The gravamen of the action is to recover the value of the property. It is not an action to recover for the value of the services rendered, but is an action to recover the value of the whole estate. Puterbaugh, Admr., v. Puterbaugh, 7 Ind. App. 280; Knight, Admr., v. Knight, 6 Ind. App. 268; Hershman, Admr., v. Pascal, 4 Ind. App. 330; Taggart, Admr., v. Tevanny, 1 Ind. App. 339; Forester v. Forester, 10 Ind. App. 680.

Filed June 14, 1895.

This paragraph does not show a prima facie indebtedness against the estate. Brown, Admr., v. Sullivan, 3 Ind. App. 211. The record does not disclose whether the verdict was based on one or both paragraphs of the complaint.

The demurrer to the first paragraph of the complaint should have been sustained. For this error the judgment of the trial court should be reversed. So far as any objection has been urged to the second paragraph it may be sufficient. It occurs to us, however, that, under the most favorable construction, in view of the averment that appellee was placed in possession of all the property, the failure to convey or devise it to him would only entitle him to recover nominal damages. If it is true that he has the property he is certainly not entitled to recover its value.

It is not necessary, however, to consider this question. Neither are we required to determine whether the motion for a new trial should have been sustained.

The judgment is reversed, with instructions to sustain the demurrer to the first paragraph of the complaint, with leave to amend each paragraph if desired.