Elwell v. Roper

1. There was evidence from which reasonable men might find that the extra services for which the plaintiff claims compensation in this action were rendered with the expectation and belief, both on her own part and on the part of Mrs. Whittemore, that Mrs. Whittemore was to pay her therefor. Munger v. Munger, 33 N.H. 581, 584; Seavey v. Seavey, 37 N.H. 125; Bundy v. Hyde, 50 N.H. 116; Sabine v. Merrill, 67 N.H. 226, Saunders v. Saunders,90 Me. 284. But there was no evidence of any understanding, either express or implied, that the services in question were to be paid for as they were performed. On the contrary, the whole tenor and effect of the evidence was, that for these services the plaintiff "would be fully paid in the end." Whether "in the end," as expressed in the evidence, had reference to the termination of Mrs. Whittemore's life or of the plaintiff's employment is immaterial; for in either view the action was seasonably begun, independently of the alleged new promise. Wood Lim. (Gould ed.) 303, 304, and cases cited in notes; Littler v. Smiley, 9 Ind. 116; Crampton v. Logan,28 Ind. App. 405; Carter v. Carter, 36 Mich. 207. It follows that the refusal of the court to grant the defendants' motions for nonsuit and verdict, upon the ground that there, was not sufficient evidence to warrant the jury in finding a new promise, presents no reversible error; for in the view entertained by the court, upon the record as now presented, a new promise was not essential.

2. The defendants' motions to dismiss, on the ground of alleged difference between the claim exhibited to the commissioner and the specification filed on appeal, were properly denied. No essential difference is apparent. Moreover, the evidence was confined to the claim as originally filed, and the trial proceeded upon that basis.

3. Upon the record, we cannot say that the evidence showed so conclusively that the plaintiff had been paid in full by Mrs. Whittemore that reasonable men could not have found to the contrary.

4. It is apparent from the record that it was in issue whether the plaintiff was in the service of Mr. or Mrs. Whittemore; in other words, whether the obligation in question was hers or his. Upon this issue, the fact that she hired the help and ran the house generally on her own account was material. The testimony of Miss Babbitt, who was employed in the Whittemore household during a considerable portion of the time for which the plaintiff seeks to recover, that while she was working there she was working for Mrs. Whittemore, that it was Mrs. Whittemore who promised to pay her, and that she relied upon Mrs. Whittemore for her pay, had some tendency to establish that fact and was competent. But we are unable to see what legitimate bearing the statement of the witness that she presented her claim against the estate of Mrs. Whittemore, and that it was paid, could have upon the issue suggested. The statement amounted to nothing more or less than evidence of the conclusion of one tribunal — the commissioner of insolvency — upon a question of fact, to influence another tribunal having a similar question before it, between other parties, to find the fact in the same way. That such testimony is incompetent is settled by the repeated decisions of this court. King v. Chase, 15 N.H. 9, 13; Hayward v. Bath,38 N.H. 179; Smith v. Smith, 50 N.H. 212, 217. Because of the error in this respect, the verdict must be set aside and a new trial granted. This conclusion renders it unnecessary to consider the other exceptions presented by the record.

Exception sustained.

All concurred.