Poffenberger v. Poffenberger

Fowler, J., delivered the opinion of the Court. This is a suit brought hy Elizabeth Poffenberger, by her husband as next friend, against Lawson Poffenberger, executor of Joseph Poffenberger, to recover compensation for services she claims to have rendered to defendant’s testator. The claim of the plaintiff consists of two principal items, namely, washing and nursing. Under the second instruction of the Court, the jury gave the plaintiff the full amount of her claim for washing, less some credits for payments made on that account, as shown by the entries in a small booh kept by the testator in his life-time.

And we do not understand that the plaintiff claims she was entitled to more compensation for washing than the sum she recovered. And there being no appeal here on the part of the defendant, the only question is as to the right of the plaintiff to recover in this action for services alleged to have been rendered by her in nursing defendant’s testator. During the course of the trial helow, the plaintiff took four exceptions, three of them to the exclusion of evidence, and one to the ruling of the Court on the prayers. The last exception is the only one that it will be necessary to consider, for the testimony, the exclusion of which forms the first and second bills of exception, was subsequently admitted, and went to the jury for what it was worth, until the Court instructed the jury that there was no legally sufficient testimony in the case to entitle the plaintiff to recover.

The propriety of this instruction, and of the ruling of the Court generally upon the prayers, form the subject of the fourth bill of exceptions. And before passing on this action of the Court below, we will ascertain what kind of testimony it is necessary ³²⁴ for the plaintiff to furnish in order to maintain her right to recover. Many cases in other States were referred to and relied upon in the argument, but the law ajiplicable to suits like this has been so fully, clearly and recently laid down by this Court in the case of Neale, &c. vs. Hermanns, 65 Md., 477 , that it would be useless to refer in this opinion to any other cases. In the case just mentioned, Judge Irving delivering the opinion of the Court, says : “It was the husband’s right that the wife should work with and for him, * * and, if she did, he was entitled to compensation. * * * It was lawful for