Baule v. Drobatz

KERRIGAN, J.

This is an action for work and labor done, and for money loaned. Judgment was entered on both counts for plaintiff. From this judgment and the order denying her motion for a new trial defendant appeals. Insufficiency of the evidence to support the findings of fact and newly discovered evidence are the chief grounds upon which appellant relies.

[595]

The plaintiff was a second cousin of Martin Drobatz, the husband of the defendant, and also an intimate friend of the Drobatz family. He lived with that family at intervals up to the death of defendant’s husband in May, 1905. While living with them plaintiff would sometimes pay for his board by working, and at other times by the payment of such sums of money as would seem to him to be fair. He testified, however, that on March 1, 1905, the defendant told him that her husband was ill and could not work, and she requested plaintiff to take charge of her ranch in Santa Clara county. From that date until August 1, 1905, he was the only man on the place, and he did all the work necessary to be done about the premises; that there had been no agreement as to his wages, but he thought his services were reasonably worth $30 a month. He also testified that at different times from August, 1903, to May, 1904, he had loaned defendant various sums of money, aggregating $1,260, on account of which he had been paid $500.

The defendant testified substantially as follows: “He [plaintiff] never pretended that he was working for wages, nor did I dream of it. After my husband’s death Baule became a different man toward the family. He was insolent, and acted as if he was the head of the concern. Finally I told him he must leave. Then for the first time he claimed that my husband 'owed him money at the time of his death. I recalled .that about three years ago on the street Baule gave my husband some money in a package, which I understood was about $400. He at this time claimed that it was $500, and then he also claimed that he should have something for what he had done on the place since my husband’s death, and that he wanted a settlement before he left. We talked the matter over, and while I did not believe it, I considered the money loaned to my husband a debt of honor, and finally concluded that I would pay him that money and $50 in complete settlement of all demands, and he said that if I would pay him the $550 he would be satisfied and would leave. . . . He came back in the afternoon, and when I had the money on a table I called in my children, Geraldine, May and Francis, and I counted out the $500, and then $60, and he gave me back $10 in change. . . . He said, ‘That settles everything between us.’ I said, ‘Now, that’s all that I owe you. Is