Sherley v. Sherley , 118 Md. 1 ( 1912 )

The suit in this case was instituted by the appellee against her brother, the appellant, upon an alleged oral agreement said by the plaintiff to have been entered into by and between her and the defendant in the year 1899, by which the plaintiff was to keep house for the defendant, and for which he was to board and clothe her and pay to her fifty cents a week so long as she should render such services, and when he should cease to need them he would provide for her a home and see that she was well cared for so long as she lived.

The declaration, when filed, contained the seven common counts and four special counts. Four of the common counts and three of the special counts have been abandoned. The three common counts remaining in the declaration are: (3) for work done and material provided; (5) for money paid by the plaintiff for the defendant at his request; (7) for money found to be due on accounts stated between them. The eleventh count, the only special count remaining, sets out the alleged oral agreement and alleges that the plaintiff performed the work required of her under such agreement from April 10th, 1899, to August 31st, 1910, and then assigns the following breaches: (1) that the defendant failed to furnish the plaintiff with clothing; (2) that he did not pay the plaintiff the fifty cents per week that under the alleged contract he was to pay her; and (3) that he dispensed with her services and refused to permit her to remain in his home and refused and failed to furnish her with a home and to provide for her thereafter.

To the declaration the defendant pleaded "never promised as alleged," and "never was indebted as alleged." Upon the trial of the case the jury rendered a verdict for the plaintiff in the sum of fourteen hundred dollars. In the course of the trial seven exceptions were noted to the rulings of the Court upon the admission of evidence, and one to the ruling of the Court upon the prayers. The defendant's counsel, however, in their written brief and in their oral argument discuss only the third and seventh exceptions to the ruling upon the evidence. Whether thereby it was their purpose and intention to abandon the other exceptions was not made known by them, but whether they intended to abandon them or not, we think the Court committed no error in its ruling upon such exceptions.

At the time this contract was said to have been made, the defendant, a carpenter, then a young man twenty-two years of age, was residing in Hagerstown, Md., and at work at his trade. His sister, the plaintiff, about two years younger, was employed at domestic work in the family of a farmer living near Winchester, Va., receiving only a small compensation for such work. The defendant's father and mother were also living near Winchester on a farm, and two of his sisters, one married and one single, lived at Hagerstown. The single sister was employed by Updegraff in making gloves.

The defendant had bought a lot of land in the City of Hagerstown for which he paid $150.00 and upon which he built a house costing eight hundred dollars; the money with which he built it was borrowed. The house and lot, subject to such indebtedness, was at that time the only property of the defendant.

The plaintiff contends that it was at the solicitation of her brother while at their father's home in Winchester, in the presence of their mother, that the oral agreement upon which this suit was instituted was made. At that time the defendant's house was in the course of construction and the plaintiff was to wait until it was ready for occupancy before going to Hagerstown. Later, the plaintiff received from the defendant a letter, appearing in the record, dated April 3, 1899, notifying her that the house was ready for occupancy and asking her to come over and assume the duties that she was to perform. That in consequence of this oral agreement and in response to the letter from her brother, she on April 7th, 1899, went to Hagerstown and from that date until August 31st, 1910, kept house for her brother, the defendant.

The defendant denies the agreement set up by the plaintiff, and contends that her coming to Hagerstown and keeping house for him was suggested by her, who said she was tired of the work at which she was employed and wished to come to Hagerstown to learn glove making. That he consented that she should come and keep house for him, but feeling that she should not do so for nothing, wrote her a letter dated March 26th, 1899, which also appears in the record, in which he said: "I have been thinking * * * that you could not take care of the house for nothing as you offered to do, so I will give you fifty cents a week and your board." This the defendant claims was all that was ever said in relation to what she was to receive for her services in keeping house for him, until about the time that he notified her, in the year 1910, that he was to be married and her services would not thereafter be needed.

The testimony as to what was the contract or agreement existing between them is, indeed, very conflicting, and it is confined chiefly to the immediate members of the family. The defendant gave notice to the plaintiff to produce the letter of March 26th. In reply to such notice the counsel for the plaintiff stated that she had not received such letter. The defendant then testified that he wrote the letter and mailed it to his sister at White Hall, Frederick County, who was at the time at David Hott's, and the letter was never returned to him. He kept a copy of his letter. At that time he "had a way of keeping copies of letters by inserting a carbon sheet of paper between two sheets and writing on them." That he kept copies of other papers which he then had. Among them was a copy of a letter that he "wrote to a man," another was a list of lumber. A carbon copy of a paper dated as of October 24th, 1899, was then offered in evidence, the admission of which was objected to by the plaintiff, and the Court sustaining the objection, exception was noted. This forms the third bill of exceptions and will be considered with the seventh exception.

The defendant then offered a copy of his letter dated March 26th, 1899, which was admitted in evidence. In speaking of this letter upon cross-examination the defendant said that he kept carbon copies of all important letters; he regarded this as an important letter, although he could not remember of keeping any other carbon copies of letters that he wrote to his brothers or sisters.

The plaintiff when called in rebuttal testified that she never received any letter from the defendant other than the one dated April 3rd, 1899. When she went to Hagerstown to live with her brother he did not have any office, he did his clerical work at home; that she had charge of that part of the house as well as the rest and did some of the work; the defendant did not have any carbon sheets, he did not keep carbon copies of papers. Nannie Sherley, the sister of the plaintiff who lived with the plaintiff and defendant, when called in rebuttal, testified that the defendant, after the plaintiff moved to Hagerstown, had his office in the dining room a while and then in the kitchen and she saw him writing letters but he did not at such times use carbon paper.

The defendant, when called in sur-rebuttal, was shown four papers and was asked what they were, to which he replied: "These are carbon copies. Q. Bearing what dates? A. February 23, 1900, October 24, 1899, February 20, 1897, and October 7, 1899. Q. By whom were they made? A. By me. Q. When? A. At the dates there stated. Q. Where?" To each of the above questions the plaintiff objected but her objections were overruled and in each case exception was reserved, but when made to the last question the Court sustained the objection and directed the stenographer to strike out the above answers admitted under objections of the plaintiff, to which the defendant excepted. This forms the seventh bill of exceptions.

It was stated by the counsel for the defendant that these papers were offered for the purpose of showing that the defendant had an outfit with which to make carbon copies in 1899. It will be recalled that the defendant testified that the carbon copies of papers made by him, including the copy of the letter of March 26th, which letter he said he mailed to his sister, were made simply by inserting carbon paper between two sheets of paper and writing upon one of them. No other outfit or other means of making such copies was claimed by him to have been used. He further testified that he did not make copies of all letters written by him, but only such as he regarded important. Thus it was not his custom or habit to keep copies of all letters written by him, but only such as were important. The copies offered in evidence are not even shown to be copies of letters, but are referred to as carbon copies of papers. The fact here sought to be ascertained by the proffered testimony is, whether or not the carbon copy of the letter of March 26th, 1899, from the defendant to the plaintiff, was made upon the date when the letter is said to have been written and mailed to the defendant. He testified that it was and this fact is in evidence. The testimony of the sisters as to whether or not he made carbon copies of papers or letters applies to a time after this letter was written. Whether he had carbon paper at the time this letter was written and whether the carbon copy was then made was not within the knowledge of the plaintiff or her sister Nannie. The letter was written at a time before the defendant and his sisters moved in the house of which they speak in their testimony, and we do not think their testimony on this point was admissible.

The fact that the copies of the papers offered in evidence were made at the time they were written, or that the papers were written as of the dates given, is, like the letter of March 26th, dependent solely upon the testimony of the defendant. It is contended by the plaintiff that the carbon copy of the letter of March 26th, 1899, is not genuine, but was made for the needs of this case. If the testimony where otherwise admissible, and we do not think it is, to escape this criticism and to show that the copy of the letter of March 26th was made at the time the letter was written and dated, the fact that the copies of the other papers, if letters, so offered in evidence, were made at the time they are dated, should not depend alone upon the testimony of the defendant. We think the Court committed no error in its rulings on the third and seventh exceptions.

At the conclusion of the case the plaintiff offered eleven prayers, and the defendant twenty-three prayers. The Court granted the plaintiff's first, eighth and ninth prayers as presented, and the second third, fourth, fifth, sixth, seventh and eleventh prayers as modified, and rejected the plaintiff's tenth prayer. Of the defendant's prayers the first, second, fourth, sixth, eighth, ninth, tenth, thirteenth and twentieth do not appear in the record. The Court granted the defendant's fourteenth and twenty-third prayers as modified, and rejected his third, fifth, seventh, eleventh, twelfth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second prayers. To the granting of the plaintiff's second, third, fourth, fifth, sixth and seventh prayers as modified the defendant filed special exceptions. The Court below overruled these special exceptions, and the defendant excepted to the overruling of his special exceptions, and to the granting of the plaintiff's granted prayers as presented and modified, and to the rejection of his rejected prayers. The defendant neither in his brief nor in his oral argument discusses his 3rd, 12th, 17th, 18th, 19th, 21st and 22nd prayers, and we find no error in the Court in the rejection of these prayers. To the ruling of the Court in granting his 14th and 23rd prayers as modified the defendant did not except. Nor does he urge any exception to the granting of the plaintiff's first prayer.

The plaintiff in this case in stating what the contract was between her and her brother, the defendant, said that the defendant in his conversation at the home of her mother near Winchester, Va., said "he wanted me to come and keep house for him, that he might have a home, and he told me he would board and clothe me and give me fifty cents a week for spending money as long as I kept house for him. That he did not want to get married and did not expect to. I said, well if I come down and you would get married after we made money, I would be out. He said he did not want to get married, but if he ever should, he would provide me a home and see that I was well cared for." And later in her testimony she extended the time in which he was to see her well cared for to so "long as she lived."

The learned Court below in stating the measure of damages in his instructions to the jury in plaintiff's 3rd, 5th, 6th and 7th prayers, construed this contract to mean that in the event of her services being dispensed with, she was to contribute the amount of her earnings to her own support, and that the defendant under his promise to provide for her a home and to see her well cared for, was to contribute thereto what was necessary after the application of her own earnings to her maintenance and support.

"The rule of construction was stated, with great clearness, inNash v. Towne, 5 Wallace, 699, as follows: Courts, in the construction of contracts, look to the language employed, the subject-matter and the surrounding circumstances. They are never shut out from the same light which the parties employed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described."Milske v. Steiner Mantel Co., 103 Md. 235.

After thoughtfully considering this contract and after examining all the authorities to which we have been referred, we are of the opinion that the construction so placed upon this contract by the learned Court below is, at least, as favorable to the plaintiff as could be asked for by her. We do not think under all the facts and circumstances of this case, the condition of the parties at the time the contract was entered into, that it could have been the intention of the defendant or that it could have been understood by the plaintiff that when her services were no longer needed she should thereafter be relieved of all effort on her part of maintaining herself, and that the whole burden of her maintenance and support should fall upon the defendant. While the evidence is conflicting, there is much evidence in the case going to show that she was dissatisfied with her employment in Virginia, that the work she had to do was irksome and of such a character as would naturally lead the plaintiff to wish for better employment. In the family in which she was employed she was required, as she admits herself, at times to milk the cows and to do other work that naturally would be distasteful to her, at extremely small wages. Her sisters were in Hagerstown one of them married and the other engaged in glove making. The testimony offered on the part of the defendant shows that one of her objects in going to Hagerstown was to learn glove making. Although this is denied by her, we, nevertheless, find her after reaching Hagerstown engaging in work of this character. The time at which she started this work varies, some of the witnesses putting it at a very short time after she settled there, while she states it was five or six years thereafter, but in any event she did engage in such work, and the evidence discloses that she was enabled to accumulate money at that and other work. She and the defendant with her sister who paid board, lived together under the arrangements made by the plaintiff and defendant, whatever they were, for more than ten years, and we may add, so far as the evidence discloses, lived pleasantly and happily together, until the defendant notified her of his intention to marry and to bring his wife into his home, at which time the services of the plaintiff would no longer be needed. It was then that they became very much estranged, and from that time until final separation their relations were anything but what should be found existing between brother and sisters. Charges and counter-charges were brought by each. In an effort to amicably settle this matter, the providing of a house for the plaintiff was discussed and different ones belonging to the defendant were mentioned, the defendant offering to furnish such house for a limited time and the plaintiff apparently entertaining such suggestion, until it seemed that the claim on the part of the plaintiff to the ownership of a piano broke off all further negotiations along this line. The plaintiff contends, however, that under her contract with the defendant she should not be limited in the time in which he was to furnish her a house in which to live. There was no suggestion or claim made by the plaintiff during the pending of these negotiations that the defendant was to maintain and support her exclusive of her earnings resulting from her own efforts. As we have said, we think this construction was indeed most liberal to the plaintiff. But in the granting of these prayers we think the Court erred, because of the fact that there is no evidence whatever to be found in the record showing what the plaintiff was capable of earning by her own efforts and without this testimony the jury would be unable to ascertain what amount would be necessary for the defendant to contribute in order to supply the deficiency, if any, in the amount required for her maintenance and support.

It is also contended by the defendant that from the evidence submitted to the jury, they could not properly and intelligently arrive at the "amount which, together with its income at a reasonable rate of interest * * * would be sufficient to support the plaintiff during her probable life, * * * leaving nothing remaining at the time of her death," as instructed by the Court in plaintiff's third, fifth, sixth and seventh prayers.

The plaintiff offered the evidence of Sliger, an insurance agent, who testified that from the American mortality tables used by practically all the insurance companies, the expectancy of life of a person of her age, thirty-four years, was thirty-two and five-tenths years. After proving this fact, the plaintiff then proceeded to prove by other witnesses what would be the cost of board and clothes for the plaintiff per annum, and from these facts the jury was to ascertain "an amount which, together with its income at a reasonable rate of interest, * * * would be sufficient to support the plaintiff during her probable life, * * * leaving nothing remaining at the time of her death." This was equivalent to instructing the jury to find from these facts what was the present worth of an annuity (such annuity being the amount of such cost of board and clothes per annum) for one of her age. This, we think, the jury could not intelligently do without some evidence, gathered from the proper source, of what would be the probable present worth of such annuity. The tables and rule upon which the probable present worth of annuities is ascertained are not ordinarily within the knowledge of jurors and should have been submitted to them. Of course, these would not have been absolutely binding upon the jurors, for the health of the individual and other causes might affect the amount of the probable present worth of the annuity as established by such tables and rule, nevertheless it should have been submitted to the jury.

The contention is also made by the defendant that the eleventh count of the declaration is defective because of duplicity in seeking to recover for three distinct breaches of the contract which will be seen by examination of the eleventh count of the declaration, or at least that part of the declaration assigning the breaches which we have hereinbefore set out. There is some difference of opinion between the members of the Court as to the effect of the eleventh prayer of the defendant. We will not, therefore, now pass on that prayer, but will add that before another trial the eleventh count should be amended so as to avoid any question of duplicity.

We think there is no force in the objection urged against the second and fourth prayers of the plaintiff, by which the jury is required to say whether there was cause for the discharge, even though the law in respect thereto should be as contended for by the defendant, for her right to recover for the amount of wages and clothing owing to her at the time of her dismissal would not be affected thereby.

We find no error in the granting of the first prayer in which the jury is instructed as to her right to recover for money owing to her as wages at the time of her dismissal. Nor do we find any error committed by the Court below in granting the plaintiff's eighth and ninth prayers.

By the plaintiff's eleventh prayer the jury was instructed that if they should "find that the plaintiff served the defendant as housekeeper from on or about April 10th, 1899, to on or about August 31st, 1910, if the jury shall so find, and that the plaintiff's services as housekeeper for the defendant were of such a nature or were rendered under such circumstances as to lead, under all the circumstances of this case, to a reasonable belief that it was the understanding of the parties that a pecuniary compensation was to be made from the defendant to the plaintiff, if the jury so find, then the jury should find an implied promise on the part of the defendant to pay the plaintiff for such services, and their verdict shall be for the plaintiff for such an amount as they shall find such services were reasonably worth for the period the jury may find she so served as his housekeeper, less such an amount, if any, as the jury may find, has been paid to the plaintiff by the defendant on account of such services."

This action, as we have stated, was brought upon an oral agreement in which the services to be rendered and the amount to be received therefor by the plaintiff are specifically stated, and the evidence offered by the plaintiff fully supports the agreement as set up by her. On the other hand, the defendant in defence of this action, sets up a different contract, one in which the services to be rendered and the amount the plaintiff was to receive therefor are also specifically stated, and which contract, as he alleges, he fully performed. The terms and existence of the defendant's alleged contract are likewise fully supported by the witnesses offered by him. Thus we think there can be no recovery in this case upon an implied contract and that the Court erred in granting the eleventh prayer of the plaintiff.

Without further prolonging this opinion by a discussion of them, we think the Court below committed no error in rejecting the defendant's third, fifth, twelfth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second prayers. We think, however, the Court erred in not granting the defendant's seventh prayer, where the Court was asked to instruct the jury that under the pleadings in the case there was no legally sufficient evidence to entitle the plaintiff to recover under the seventh count of the plaintiff's declaration. We think this prayer should have been granted.

From what we have said, the judgment of the Court below will be reversed.

Judgment reversed, new trial awarded, with costs to theappellant.