Herman v. Oehrl

Urner, J., delivered the opinion of the Court. The appellants are executors of the will of Rosina B. Stengel, deceased, and they were sued by the appellee for the recovery of four hundred and live dollars upon an account for board and lodging furnished the testatrix during a period of about two and a half years preceding her death. This appeal is from a judgment upon verdict in favor of the plaintiff for the amount of his claim. The principal question to be considered is presented on an exception to the refusal of the Court below to grant an instruction that the evidence was not, legally sufficient to entitle the plaintiff to recover.

It is not denied on behalf of the appellants that there is testimony in the record tending to show that Mrs. Stengel entered the home of the appellee, her nephew, in the capacity of a boarder and upon an express agreement for compensation at a stipulated rate; but it is urged that the evidence proves without contradiction that the contract was made exclusively with the appellee’s wife and that he has consequently no right to maintain the present suit. The appellee, being disqualified as a witness, did not testify as to the transaction. His wife describes it as follows: “She (Mrs. Stengel) was there in the latter part of August and asked me if she could come and board at our house, if I had any objections. I told her no, I had no objections.

I said I would ask Mr. Oehrl, that I did not like to take a' boarder unless I asked him; she said, I ask you first, as you are the wife, the main one, and I ask you, as you do not belong to my family; I am sure Mr. Oehrl would not ca.re. I told her if it was all right with him, it would be with me, and I would ask him' * * * I said, Auntie, how much will yon give me, how much will you pay me; * * * She said, ⁵¹⁴ Well, I think about three dollars, I can pay that I think; I am not paying quite that much where I am; it takes more to keep your table up; I like it much better; I am willing to pay three dollars a week.” The witness said' she communicated this to her husband, and that thereafter Mrs. Stengel was supplied with a room and board at their home until the time of her death. No payments were made by the boarder for these accommodations, except that when the appellee offered to pay her a balance of one hundred and fifty dollars which he owed her on the purchase of the house in which they were living, she would not accept the money and said “let it go on my boqi’d.” There were frequent occasions when in reply to requests from Mrs. Oehrl for payments on account Mrs. Stengel used such expression as “I will pay yon after a while” or “You will get it all together.” One of these occurences having been mentioned to the appellee by his wife he remarkd: “Well, if my aunt says she will pay you she is going to do it because she is a woman of her word.” Another witness testified: “I was there when she asked Mrs. Oehrl if she would not take her to board with him, she would be able to pay three dollars a week, and she would like to come with him, she always used to call him George. * * * She had a talk with me about Mr. Oehrl offering her one hundred and fifty dollars, but she said that he had better keep it on the board, because she wanted to pay him three dollars a week, * * * and she told me once that Mrs. Oehrl asked her for board, * * * but that every cent she owed to them they would get, they would get it all in one lump.” This sufficiently illustrates the proof reflecting upon the question now under consideration, and in our judgment the evidence does not compel the inference that the agreement in suit was made with the wife to the exclusion of the husband. The testimony not only fails to show conclusively that the wife contracted to furnish the board and lodging on her separate account, but it points to circumstances from which the jury could find that both the boarder and appellee understood that' he was the person to whom her indebtedness ⁵¹⁵ was accruing.

This is readily inferable from the fact that at her suggestion the amount- due her from the appellee was applied on the hoard, and from her statements that she would like to come with him and that she wanted to pay him three dollars per week. It would be necessary to entirely disregard this evidence in order to sustain the appellee’s contention. While it is provided by statute (Code, Article 45, section 5), that a wife may contract as if she were unmarried, we are unwilling to hold that the existence of an agreement under which she would be entitled to deal independently of her husband with reference to the accommodation of a boarder in the home which he maintains should be conclusively inferred from such evidence as we are now considering. If we assume that in some of its elements the testimony before ns tends to support the appellants’ theory, it plainly admits