Sherley v. Sherley

Pattison, J., delivered the opinion of the Court. The suit in this ease was instituted by the .appellee against her brother, the appellant, upon an alleged oral agreement said by the plaintiff to have been entered into by and between her and the defendant in the year 1899, by which the plaintiff was to keep house for the defendant, and for which he was to board and clothe her and pay to her fifty cents a week so long as she should render such services, and when he should cease to need them he would provide for her a home and see that she was well cared for so long as she lived. The declaration, when filed, contained the seven common counts and four special counts. Four of the common counts and three of the special counts have been abandoned.

The three common counts remaining in the declaration are: (3) for work done and material provided; (5) for money paid ¹⁸ by the plaintiff for the defendant at his request; (7) for money found to be due on accounts stated between them. .The eleventh count, the only special count remaining, sets out the alleged oral agreement and alleges that the plaintiff performed the work required of her under such, agreement from April 10th, 1899, to August 31st, 1910, and then assigns the following breaches: (1) that the defendant failed to. furnish the plaintiff with clothing; (2) that he did not pay the plaintiff the fifty cents per week that under the alleged contract he was to'pay her; and (3) that he dispensed with her services and refused to permit her to remain in his -home and refused and failed to furnish her with a home and to provide for her thereafter. To the declaration the defendant pleaded “never promised as alleged,” and “never was indebted as alleged.” Upon the trial of the case the jury rendered a verdict for the plaintiff in the sum of fourteen hundred dollars. In the course of the trial seven exceptions were noted to the rulings of the Court upon the admission of evidence, and one to the ruling of the Court upon the prayers. The defendant’s counsel, however, in their written brief and in their oral argument discuss only the third and seventh exceptions to the ruling upon the evidence.

Whether thereby it was their purpose and intention to abandon the other exceptions was not made known by them, but whether they intended to abandon them or not, we think the Court committed no error in its ruling upon such exceptions. At the time this contract was said to have been made, the defendant, a carpenter, then a young man twenty-two years of age, was residing in Hagerstown, Md., and at work at his trade. His sister, the plaintiff,. about two years younger, was employed at domestic work in the family of a farmer living near Winchester, Va., receiving only a small compensation for such work. The defendant’s father and mother were also living near Winchester on a farm, and two of his sisters, one married and one single, lived at Hagerstown. ¹⁹ The single sister was employed by Lpdegraff in making-gloves.

The defendant had bought a lot of land in the City of Hagerstown for which he paid $150.00 and upon which he built a house costing eight hundred dollars; the money with which he built it was borrowed. The house and lot, subject to such indebtedness, was at that time the only property of the defendant. The plaintiff contends that it was at the solicitation of her brother while at their father’s home in Winchester, in the presence of their mother, that the oral agreement upon which this suit was instituted was made. At that time the defendant’s house was in the course of construction and the plaintiff was to wait until it was ready for occupancy before going to Hagerstown.

Later, the plaintiff received from the defendant a letter, appearing in the record, dated April 3. 1899, notifying her that the house was ready for occupancy and asking her to come over and assume the duties that she was to perform. That in consequence of this oral agreement and in response to the letter from her brother, she on April 'Tth, 1899, went to Hagerstown and from that date until August 31st, 1910, kept house for her brother, the defendant. The defendant denies the agreement set up by the plaintiff, and contends that her coming to Hagerstown and kecp.ing house for him was suggested by her, who said she was tired of the work at which she was employed and wished to come to Hagerstown to learn glove making. That he consented that she should come and keep house for him, but feeling that she should not do so for nothing, wrote her a letter dated March 26th, 1899, which also appears in the record, in which he said: “I have been thinking * * * that you could not take care of the house for nothing as you offered 1o do, so I will give you fifty cents a week and your board.” This the defendant claims was all that was ever said in relation to what she was to receive for her services in keeping house for him, until about the time that he noti ²⁰ fled her, in the year 1910, that he was to be married and her services would not thereafter be needed.

The testimony as to what was the contract or agreement existing’ between them is, indeed, very conflicting, and it is confined chiefly to the immediate members of the family. The defendant gave notice to the plaintiff to produce the letter of March 26th. In reply to such notice the counsel for the plaintiff stated that she had not received such letter. The defendant then testified that he wrote the letter and mailed it to his sister at White Hall, Frederick County, who was at the time at David Hott’s, and the letter was never returned to him.

He kept a copy of his letter. At that time he “had a way of keeping copies of letters by inserting a carbon sheet of paper between two sheets and writing on them.” That he kept copies of other papers which he then had. Among them was a copy of a letter that he “wrote to a man,” another was a list of lumber. A carbon copy of a paper dated as of October 2dth, 1899, was then offered in evidence, the admission of which was objected to by the plaintiff, and the Court sustaining the objection, exception was noted.

This forms the third bill of exceptions and will be considered with the seventh exception. The defendant then offered a copy of his letter dated March 26th, 1899, which was admitted in evidence. In speaking of this letter upon cross-examination the defendant said that he kept carbon copies of all important letters: he regarded this as an important letter, although he could not remember of keeping any other carbon copies of letters that he wrote to his brothers or sisters. The plaintiff when called in, rebuttal testified that she never received any letter from the defendant other than the one dated April 3rd, 1899.

When she went to Hagerstown to live with her brother he did not have any office, he did his clerical work at home; that she had charge of that part of the house as well as the rest and did some of the work; the'defendant did not have any carbon sheets, he did not keep carbon copies of papers. Hannie Sherley, the sister of the ²¹ plaintiff who lived with the plaintiff and defendant, when called in rebuttal, testified that the defendant, after the plaintiff moved to Hagerstown, had his office in the dining room a while and then in the kitchen and she saw him writing letters but he did not at such times use carbon paper. The defendant, when called in sur-rebuttal, was shown four papers and was asked what they were, to which he replied: “These are carbon copies. Q. Bearing what dates?

A. February 23, 1900, October 24. 1899, February 20, 1897, and October 7, 1899. Q. By whom were they made ? A. By me. Q. When?

A. At the dates there stated. Q. Where?” To each of the above questions the plaintiff objected but her objections were overruled and in each case exception was reserved, but when made to the last question the Court sustained the objection and directed the stenographer to strike out the above answers admitted under objections of the plaintiff, to which the defendant excepted. This forms the seventh bill of exceptions. It was stated by the counsel for the defendant that these papers were offered for the purpose of showing that the defendant had an outfit with which to make carbon copies in 1899.

It will bo recalled that the defendant testified that the carbon copies of papers made by him, including the copy of the letter of March 26th, which letter he said he mailed to his sister, were made simply by inserting carbon paper between two sheets of paper and writing upon one of them. Ho other outfit or other means of making such copies was claimed by him to have been used. He further testified that he did not make copies of all letters written by him, but only such as he regarded important. Thus it was not his custom or habit to keep copies of all letters written by him, but only such as were important.

The copies offered in evidence are not even shown to be copies of letters, but are referred to as carbon copies of papers. The fact here sought to be ascertained by the proffered testimony is, whether or not the carbon copy of the letter of March 26th, 1899, from the ²² defendant to the plaintiff, was made upon the date when the letter is said to have been written and mailed to the defendant. He testified that it was and this fact is in evidence. The testimony of the sisters as to whether or not he made carbon copies of papers or letters applies to a time after this letter was written.

Whether he had carbon paper at the. time this letter was written and whether the carbon copy was then made was not within the knowledge of the plaintiff or her sister Nannie. The letter was written at a time before the defendant and his sisters moved in the house of which they speak in their testimony, and we do not think their testimony on this point was admissible. The fact that the copies of the papers offered in evidence were made at -the time they were written, or that the papers were written as of the dates given, is, like the letter of March 26th, dependent solely upon the testimony of the defendant. It is contended by .the plaintiff that the carbon copy of the letter of March 26th, 1899, is not genuine, but was made for the needs of this case.

If the testimony where otherwise admissible, and we do not think it is, to escape this criticism and to show that the copy of the letter of March 26th was made at the time the letter was written and dated, the fact that the copies of the other papers, if letters, so offered in evidence, were made at the time they are dated, should not depend alone upon the testimony of the defendant. We think the Court committed no error in its rulings on the third and seventh exceptions. At the conclusion of the case the plaintiff offered eleven prayers, and the defendant twenty-three, prayers. The Court granted the plaintiff’s first, eighth and ninth prayers as presented, and the second third, fourth, fifth, sixth, seventh and eleventh prayers as modified, and rejected the plaintiff’s tenth prayer.

Of the defendant’s prayers the first, second, fourth, sixth, eighth, ninth, tenth, thirteenth and twentieth do not appear in the record. The Court granted the defendant’s fourteenth and twenty-third prayers as modi ²³ fled, and rejected his third, fifth, seventh, eleventh, twelfth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second prayers. To the granting of the plaintiff’s second, third, fourth, fifth, sixth and seventh prayers as modified the defendant filed special exceptions. The Court below overruled these special exceptions, and the defendant excepted to the overruling of his special exceptions, and to the granting of the plaintiff’s granted prayers as presented and modified, < and to the rejection of his rejected prayers.

The defendant neither in his brief nor in his oral argument discusses his 3rd, 12th, 17th, 18th, 19th, 2.1st and 22nd prayers, and we find no error in the Court in the rejection of these prayers. To