Cheney v. McGarvin

TAGGART, J.

Appeal from an order granting a new trial.

Plaintiff presented a properly verified claim against the estate of Charles H. Bush, deceased-, of which defendant is administrator, itemized and stated as follows:

[72]

“To services as general clerk in jewelry store of deceased from July 1st, 1903, to May,

1st, 1904, 43 3-7 weeks at $20.........$ 860.57

“To services as general clerk in jewelry store of deceased from Dec. 20th, 1904, to July 23rd, 1905, 32 1-7 weeks at $20.. .$ 642.85

$1503.42

“By. cash received at divers times between

July 1st, 1903, and July 23d, 1905.... 560.42

“Balance due..................$ 943.00”

This claim was rejected by defendant, and action commenced thereon by plaintiff within the statutory time. The complaint states the cause of action in two counts, one of which declares on an express promise to pay by the deceased, and the other upon the reasonable value of the services rendered.

The evidence introduced by plaintiff to establish the character of her employment, and amount and manner in which she was to be paid for her services, consisted of the testimony of her daughter to an oral agreement between plaintiff and the deceased. This testimony, so far as material to the question here being considered, was: “He [Bush] asked her (plaintiff) to come to work at a salary of twenty dollars a week.” “She was to come there as clerk to sell jewelry and attend to his store. She also collected rents and attended him when he was sick.” “Mr. Bush said my mother was to draw'seven dollars a week and leave the thirteen dollars a week remaining with him that she might furnish a home.” “My mother lived with me, and Mr. Bush visited us very often. The contract between Mr. Bush and my mother was often spoken about. It was that he was to build a home and that he was to furnish a home for us.” “Mr. Bush said that she was to receive twenty dollars per week, thirteen of which was retained to be devoted to the purchase of furniture for a residence which was to be constructed by him and he was to arrange matters by his will so that at his death it should go to my mother; this money was to be held by him and devoted to the purchase of furniture for that place; that was the agreement entered into between himself and my