Humberston v. Detwiler , 7 Pa. Super. 587 ( 1898 )

Opinion by

Orlady, J.,

The alleged verbal contract on which this action was founded was entered into between Alexander Martin and Jacob Hum berston providing for tbe support and maintenance of an illegitimate child.

As laid in the statement, the claim was that “ the said plaintiff was to take said child and board and raise him until he arrived at the age of sixteen years, the said Alexander Martin, now deceased, the father of said child to furnish its clothes and pay for its schooling at summer schools, and also, to pay all doctor’s bills that might be incurred in raising of said child. The said Alexander Martin now deceased was further to pay the said plaintiff the sum of five dollars per month for boarding and raising said child until it arrived at the age of sixteen years.”

On the trial the defendant did not 'offer any evidence and the court was requested to say to the jury “ that under all the testimony the plaintiff is not entitled to recover; ” which was refused, and the facts were submitted to the jury in a fair and well-guarded charge.

The plaintiff proved the declarations of Martin in regard to the support of the child, which were made to disinterested persons, and that money was paid by him under the verbal contract as claimed by the plaintiff.

Under the authority of Harrington v. Hickman, 148 Pa. 401, the action of the court was clearly right.

In that case as in this “ The question then comes down to this : Is the clear distinct statement of the party to be charged any evidence of the fact stated? In an action against him, it would not admit of doubt that such a declaration would be competent, and if believed, sufficient evidence upon which to sustain a recovery. Why is it not competent in an action against his executors ? The competency of the declaration of the party to be charged does not depend upon whether he is living or dead.”

The books of account of plaintiff’s decedent were not produced, but they were not essential to sustain the claim which was founded upon an oral contract.

The jury was the proper tribunal to pass upon the questions at issue and the evidence adduced was sufficient to warrant the verdict: Lautner v. Kann, 184 Pa. 334; Harrington v. Hickman, 148 Pa. 401. The character of the claim, the necessities of the plaintiff, the delay in bringing suit, all contributed to increase the burden of the plaintiff in establishing his claim, but each and all were overcome by proof which satisfied the jury that the defendant’s estate should pay for the support of his son.

The case was fairly tried and the judgment is affirmed.