Gill v. Donovan

Jones, J., delivered the opinion of the Court. The appellant is the administrator of Catherine L. Staylor and as such was sued in the Baltimore City Court by the appellee for money claimed to be due the appellee for services rendered the appellant’s intestate in her lifetime. The declaration contained only the common counts and the appellant demanded a bill of particulars in response to which the appellee filed the following statement of her claim : “Complying with defendant’s demand for a bill of particulars, the plaintiff begs to state as follows : “That, on or about the 5th day of September, 1886, the plaintiff was employed by Catherine L. Staylor, deceased, as a domestic, at $2. 50 per week. That the plaintiff remained in the employ of the said Catherine Staylor, deceased, until about the ipth day of October, 1890, making a total of two hundred and ten weeks, which, at $2.50 per week, makes due her in all the sum of five hundred and twenty-five dollars, no part of which claim was ever paid to her.” The appellant then pleaded the general pleas and the statute of limitations ; as also want of assets.

The appellee took issue on the other pleas ; and to the plea of limitations replied new promise upon which issue was joined. The questions in the case are made mainly upon the effect of the bill of particlars, and upon the plea of limitations. The record shows there was a motion in arrest of judgment but this was abandoned in this Court. The matters for review here are presented by eight exceptions to the rulings of the trial Court upon objections to evidence made by the appellant and over ⁵²² ruled by the Court; and an exception by the appellant to the action of the Court in granting an instruction asked for by the appellee and the overruling of special exceptions thereto; and the rejection of certain instructions asked for by the appellant.

The instructions proposed by the appellant were eleven in number, of which the Court rejected the first, second, third, fifth, sixth, seventh, ninth, tenth, and modified the eleventh and granted the same as modified; and granted the fourth, eighth and ninth as offered. There was an agreement that in case of a verdict for plaintiff “the judgment thereon should be to bind assets only in the hands of the administrator.” This evidently is the reason that neither in the evidence offered, nor in the instructions in the case is there any reference to the matter of the appellant’s fourth plea. We therefore are not concerned with any question in that connection; and may dispose of other questions. without reference to this plea. The claim which is the basis of the plaintiff’s suit is, as has been seen, for money due her for services rendered the appellant’s intestate, Mrs. Catharine Staylor, between September, 1886, and October, 1890.

This suit was brought April 16th, 1900 — about ten years after the rendering of the services. The plea of the statute of limitations, therefore, upon the appellant’s theory of the case, will be a complete bar to the recovery by the plaintiff in this suit unless the replication of a new promise be supported by the proof. After all the evidence was in at the trial below the appellant offered a prayer, being the first of his prayers, to the effect that there was “no legally sufficient evidence to remove the bar of the plea of the statute of limitations.” This prayer the trial Court rejected. Whether there was error in this may be regarded as a question in limine; for if this prayer asserts a correct proposition as respects the evidence in the cause all other propositions would become moot questions.

There was no error in this ruling. Among other witnesses in the cause a Mrs. Carr testified that she was the stepmother of the plaintiff; that the plaintiff (appellee here) was living with ⁵²³ her at the time “ she went to Mrs. Staylors ; ” that after her (appellee’s) father died “ she went to work with a little girl friend of hers, and was making $2.50 a week. She continued at that work until she went to Mrs. Staylor’s.” The witness then further testified that “ Mrs. Staylor said she would like to have Maggie with her, and she would give her the same wages that she had at the store where she worked then, so Maggie went to her. Mrs. Staylor told me this, and then later on I called to see her there, and quite three months before she died, and she told me she intended to do well by Maggie (appellee), though she had not paid her yet, but she would pay her, and she intended to give her more than wages, and she said she would give everything to Johnnie and Maggie.

This was not quite, but nearly three’months before Mrs. Staylor died.” From other proof it appeared Mrs. Staylor died in October, 1899. Here was testimony tending to prove the appellee’s claim as set out in her bill of particulars; and assuming the debt, claimed by the appellee to be due to her by Mrs. Staylor, to have been proved by this; or by this and other proof, the testimony also tended to show that Mrs. Staylor in the conversations detailed by the witness was referring to this debt. If so when she said she had not paid the appellee “yet,” and that she woidd pay her and more than “wages” this was a sufficient acknowledgment to take the case out of the operation of the Statute of Limitations. Shipley and Wampler, Extrs., v. Shilling, 66 Md. 558 ; Stewart v. Garrett & Maus, 65 Md. 392 ; Beeler v. Clark, 90 Md. 221 .

It did not impair the obligation which the law imposes to pay a debt so acknowledged, that she indicated an intention to discharge the obligation by bounty to the appellee under her will. The acknowledgment of a subsisting debt unaccompanied with any sufficient excuse for not paying it will remove the bar of the statute. This was laid down in the case of Oliver v. Gray, 1 H. & G. 204 , and is fortified by other decisions. There is other testimony going to show a recognition by Mrs. Staylor that the appellee had rendered, for her, services of value ; and that the appellee had not been paid for the same. ⁵²⁴ It was proper therefore that the question of new promise raised by the plaintiff’s replication to the plea of limitations should be submitted to the jury; and before leaving this aspect of the case we may inquire whether it was properly submitted.

The appellant offered two prayers — his tenth and eleventh defining the character of the acknowledgment or promise that ought to be found by the jury to remove the bar of the statute. The eleventh prayer asked that the j ury be instructed that ‘ ‘ under the pleadings in this case, they must find by a fair preponderance of evidence, that within three years before her death Mrs. Catharine Staylor, the defendant’s intestate, either expressly promised to pay the claim of the plaintiff, sued on in this action, or within three years made a distinct acknowledgment of it as an existing obligation, which distinct acknowledgment showed a present subsisting moral obligation to pay the same.” The Court modified this prayer by adding to it the following : “ Unless they further find that Mrs. Catharine Staylor expressly promised the plaintiff that the plaintiff would be paid for her services at Mrs. Staylor’s death.” It is contended there was no evidence to support this modification. But we find that John Staylor, a witness, after giving testimony tending to establish the claim made by the appellee according to her statement of claim, testified that after the appellee entered upon service for Mrs. Staylor arid had remained there for a time she, in the language of the witness, “ got fussing about money and said she wanted money, and her aunt told her she could not give it to her now, but said she would give it to her at her death ; she said she had it in her will.” He also testified that after this “fuss ” about money the appellee left the home of Mrs. Staylor and returned again to Mrs. Staylor’s service upon the latter’s request. This testimony afforded a basis for the hypothesis of the Court’s modification of this eleventh prayer.

In the case of Gill v. Staylor, 93 Md, 453, in which the administrator of Mrs. Staylor was sued, as he is in the case at bar, for the value of services rendered to his intestate in her lifetime the trial Court upon a very similar condition of proof, attached to one of the prayers ⁵²⁵ offered by the appellant a modification to the same effect as, and in almost identical terms with, the one we have under consideration ; and the same was approved by this Court. We see no reason why the part of the instruction in that case which was embodied in the Court’s modification is not equally appropriate here. We find no error in this action of the Court. The tenth prayer of the appellant, which was rejected by the trial Court, was, in substance and effect, the same as his eleventh prayer as offered.

By the Court’s action on the eleventh prayer the appellant got the benefit of the