Stuart v. Lord

SHAW, J.

The suit was brought to recover for services rendered to the defendant’s intestate from January 26, 1897, to January 26, 1899, at which latter date the intestate died. It is alleged that the servicess were worth the sum of thirty-five dollars per month. The court found that the plaintiff rendered services to the intestate as housekeeper, cook, and general farm servant for the time alleged “at the fixed price of fifteen dollars per month, and the proceeds of the butter and eggs from the farm of the said” deceased, and upon the issue of payment the court found that her work and services mentioned in the complaint were wholly paid for.

The appellant claims that the finding as the price to be paid her is unsupported by the evidence, and that the finding of payment is against law and contrary to the evidence, be

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cause the evidence shows that she had been paid nothing, and further that the court erred in refusing to permit the plaintiff to testify in contradiction of a witness who had testified as to certain statements made to the witness by the plaintiff in the lifetime of the deceased.

The only evidence to support the finding that the services were rendered at the agreed rate of fifteen dollars per month and the proceeds of the butter and eggs, is that of Mrs. Baun, who testified that in a conversation with the plaintiff in the month of November or December, 1898, the latter “said she was receiving for her services upon the Lord ranch, and as her wages, the sum of fifteen dollars per month, and the profits from the sale of butter and eggs, which were produced upon the ranch.” In view of this evidence, it cannot be said that the finding is not supported by the evidence.

According to the finding of the court the plaintiff served for two years at the rate of fifteen dollars per month, making in the aggregate three hundred and sixty dollars due her. The only evidence of payment in the record consisted of four cheeks offered by the defendant, for the aggregate amount of one hundred and twenty dollars, drawn by the deceased in favor of the plaintiff, indorsed by her, and marked “paid” by the bank. One of these checks was made before the services began, and as to the other three there is nothing to show that they were given to her on account of her services, other than the fact that she received them after the services began. But, assuming that the court believed they were paid on account of the services, there would still remain a balance of two hundred and forty dollars due the plaintiff, with regard to which there is no evidence of payment whatever. There can be no doubt, therefore, that the finding of payment is not justified by the evidence. It can only be explained on the assumption that the court supposed that the burden of proof of non-payment was on the plaintiff, and made the finding because the plaintiff did not prove that the claim was not paid. The case of