Burgess v. Helm , 24 Nev. 242 ( 1898 )

The facts sufficiently appear in the opinion. The plaintiff duly filed with the Clerk of the District Court of the First Judicial District of the State of Nevada, in and for Ormsby county, his claim against the estate of said deceased, to wit:

"Estate of Mrs. William McDonald, deceased, to William Burgess, Dr., for wages from February 15, 1890, to April 13, 1897, as a laborer working for deceased upon and about her home at the rate of $12 per month, $1044. Credit by cash paid on account of wages during said period and for clothes purchased by deceased and furnished claimant, $245; balance, $799."

The administrator rejected the claim, hence this suit. The jury found for the plaintiff in the sum of $500. Judgment was given accordingly with costs. The defendant appeals from the judgment and from an order of the court denying his motion for new trial.

It is alleged by the complaint, substantially, that the plaintiff worked, as a laborer, on the farm and in and about the premises of Mrs. William McDonald, deceased, at her request, from February, 1890, to April, 1897; that the plaintiff filed his claim on which this action is brought against said estate for his said services with the clerk of said court; that the same was presented by the clerk to the defendant as such administrator, for allowance, and by the defendant rejected; "that a copy of said claim as presented is hereto attached and made a part of this complaint"; that said services are reasonably worth the sum of $12 per month; that no part of the same has been paid except the sum of $245; and that there remains due and unpaid thereon to the plaintiff the sum of $799.

The defendant demurred to the complaint on the grounds that the court had no jurisdiction of the subject matter, and that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, to which exception was taken, and the ruling of the court is assigned as error.

The particular grounds specified, argued and urged by counsel in support of the demurrer are: "That the action herein sought to be maintained is one upon a quantummeruit, while the claim filed and presented to the defendant, as such administrator, for allowance or rejection, was founded upon an express contract.

"That the complaint filed in said action is not founded or based upon the claim which is alleged to have been presented to defendant. * * *

"That the claim upon which the cause of action is set out in the complaint was never filed or presented to the defendant." * * *

The complaint shows that the action was brought on the said claim, which was presented to and rejected by the defendant. If that claim is based upon an express contract between the plaintiff and Mrs. McDonald, deceased, and to recover an agreed price for said services, then this action is founded on that character of claim, and not upon an implied contract for the payment of what said services were reasonably worth. If the defendant regarded the complaint as being uncertain or ambiguous in the above respect, and that it was material for him to be informed, for the purposes of his defense, as to the character of the contract on which the plaintiff based his claim against the estate, he should have demurred on the "seventh" statutory ground of demurrer.

If the claim on which this action was brought be regarded as a claim based on an express agreement, and for an agreed rate of compensation for the services performed, a recovery by the plaintiff upon proper proof of the services and of their value must be sustained. At most, it would only be a variance between the pleading and proof which might be disregarded unless it misled the defendant to his prejudice, which is not pretended, but counsel for defendant admitted in open court below that he was not misled. (Gen. Stats, sec. 3093; Sussdorff v. Schmit, 55 N.Y. 319.)

"Under an allegation of an agreed price, if there is a failure to prove the agreement as to price, evidence of value is competent for the purpose of a recovery of what the article was fairly worth, but not to sustain a recovery beyond the amount alleged." (Livingston v. Wagner,23 Nev. 57.)

"Under an allegation of a contract to pay a specified rate of compensation, plaintiff may prove a promise to pay what the services were really worth or an implied promise to pay the usual compensation." (Abbott's Trial Ev. 367, and cases cited.)

Upon the other hand, under a complaint on a quantummeruit for services, where a specified contract is proved, fixing the price for services, the stipulated price becomes the quantum meruit in the case. (Fells v. Vestvali, 2 Keyes, 152.)

If the plaintiff was entitled to recover at all, it was on the ground that the services had actually been rendered, and after complete performance of an express contract there is no reason why a recovery may not be had upon a complaint onquantum meruit (Id.), when the opposite party to the action has not been misled in his defense.

The plaintiff introduced and examined several witnesses, having no interest in the result of the suit, to prove the declarations and conversations made to and had with the several witnesses by Mrs. William McDonald, during and at the time the plaintiff was engaged in performing the alleged services, concerning the character of work he was performing for her, the amount of wages he was to receive therefor and the terms of payment. Counsel for defendant objected to the evidence on the ground that the other party to the transaction is dead. The court overruled the objections, and these several rulings are assigned as error. The objections were based on the 379th section of the civil practice act, as amended, Stats. 1897, p. 44.

The civil practice act, sec. 376, provides: "All persons without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and perceiving can make known their perception to others, may be witnesses in any action or proceeding in any court of this state. Facts which, by the common law, would cause the exclusion of witnesses may still be shown for the purpose of affecting their credibility."

The evident object the legislature had in view in enacting the above provisions was to abrogate the general common-law rule which rendered incompetent, as witnesses, in an action or proceeding, the parties thereto or persons having a direct interest in its results, except, as provided in certain subsequent sections, among which is section 379, which declares "that no person shall be allowed to testify, when the other party to the transaction is dead, or when the opposite party to the action or person for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased persons."

That is, as applicable to this case, under said objection, no person who is a party to the action or who has a direct interest in the result of the action shall so testify when the other party to the transaction is dead.

The said witnesses in this case were not parties to the action, nor had they any interest in the result of the action.

The contention of counsel is, in effect, that, under the above provisions of the statute, persons having no interest in the litigation, as parties thereto, or otherwise, are equally, with the parties to the action and persons directly interested in its result, rendered incompetent to testify when the other party to the transaction is dead. If such construction of the statute be correct, then the legislature has practically closed the doors of the courts against the creditors of deceased persons, and against all persons having any character of action arising upon any transaction when the other party to the transaction is dead.

We are not willing to ascribe to the legislature such unjust and absurd purpose. Neither the letter, object nor spirit of the statute supports the construction contended for by counsel.

The judgment and order appealed from are affirmed.