Stoner v. McConaughy's Estate ( 1914 )

OSTEANDEE, J.

(after stating the facts). Reading the entire record satisfies me that the court properly refused to direct a verdict for the estate, and that the question whether claimant performed the services under an express agreement was a question for the jury. This because there is testimony which may be interpreted as meaning that deceased agreed to pay claimant well for what services he should perform, and to give him or his wife the house, if he would continue to perform them during his life. But I find in the record, which contains the substance of all the testimony given upon the trial, no testimony tending to prove that, if there was an express agreement as claimed, McConaughy committed any act making it impossible for claimant to perform it. If he abanr doned performance of an express contract, he did it voluntarily. The testimony upon the subject is all to this effect. However, the point is not made by counsel for appellant, who complains only that the question of whether there was an express contract was submitted to the jury, contending that such a contract is made out by undisputed testimony.

The other exceptions appear to me to be without merit, and the judgment must therefore be affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.