« 이전계속 »
and 122 New York State Reporter of age, had opened a horseshoeing establishment of his own, and had commenced to attend a veterinary college, from which he graduated in 1880. In the fall of 1875, it appears that Mr. Bonner had employed the plaintiff to do some horseshoeing, and the plaintiff continued to do work of this kind for Mr. Bonner until his death, in 1899.
Before calling attention to the testimony by which it is sought to prove this contract, there are two principles which it is well for us to bear in mind in considering the weight to be given to this testimony. The first is that verbal admissions, uncorroborated by other facts or evidence, should always be weighed with great caution, and that adinissions, made in the course of a casual conversation, after a great lapse of time should be given little probative force. I Am. & Eng. Enc. of Law (2d Ed.) p. 723. The second is that contracts claimed to have been made by deceased persons, to be enforced after death, are to be regarded with grave suspicion, and the testimony upon which they sought to be sustained closely scrutinized, and the claim should only be allowed when established by strong and convincing evidence. Shakespeare v. Markham, 72 N. Y. 400.
In Hamlin v. Stevens, 177 N. Y. 47, 69 N. E. 120, it is said:
"Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents."
We have in this case a contract alleged to have been made 23 years before the decedent's death, by which for indefinite services to be rendered in the future as a veterinary surgeon by a young man 21 years of age, who had just commenced to study that profession, there was an absolute promise to pay $100,000—a contract which requires strong and convincing evidence to sustain it, where the only evidence of it is testimony of casual conversations with the decedent, made many years after the contract is alleged to have been made, and under circumstances which at least render the accuracy of the testimony as to the conversation extremely doubtful. Can a contract which must be proved by strong and convincing evidence be said to be proved by testimony of such improbable admissions ?
The first witness who was called to prove this contract testified that he first made the acquaintance of Mr. Bonner about the year 1882, in the horseshoeing establishment of the plaintiff's father; that thereafter he knew Mr. Bonner so as to shake hands with him and pass the time of day; that he saw Mr. Bonner generally about a dozen times altogether, watching his horses being shod; that he also met Mr. Bonner 10 or 15 times at horse sales, the particular ones he could not recollect; that the last horse sale he attended at which he saw Mr. Bonner was in 1894. at the Madison Square Garden, and on that occasion he had a conversation with him about the plaintiff. This conversation was 18 rears after the alleged contract was made, and 9 years before the witness testified, and he had never spoken to any one about the conversation until a few months before he gave testimony. He testified: That when he was in the Garden he saw the plaintiff examining a horse, and that
he stood about 20 feet from the horse with Mr. Bonner. That they were talking on casual things, and Mr. Bonner asked the witness if he had ever heard that the plaintiff had saved his life-Mr. Bonner saying that at the farm, in Tarrytown, they were shoeing a horse, and, in taking down a shoe from the wall where it was hanging, this shoe caught in the horse's tail, and Mr. Bonner, being in the corner where the shoeing was, could not get out of danger; that the horse kicked back twice, and the second time knocked his hat off, and the plaintiff, seeing Mr. Bonner in a dangerous position, jumped in and grabbed the horse's tail to give Mr. Bonner a chance to get out of danger; that, after he got out of this corner, he felt sure that Mr. Roberge was positively killed, the way the horse kicked. "So Mr. Bonner told me that he appreciated Mr. Roberge's services in saving his life so much that he told Frank, he says, Now, Frank, what would you rather do—have me pay you for my city work, or would you rather take a hundred thousand dollars when I die?' And Mr. Roberge told him that he would rather take the one hundred thousand dollars, and Mr. Bonner told me that he told Mr. Roberge that, if he would stay in his service as long as he lived, when he died he would leave him one hundred thousand dollars, and he would leave it so that there would be no litigation in the matter at all.” Upon cross-examination the witness placed this conversation with Bonner in 1891, having said in his direct that it was in 1894; that he first met Mr. Bonner in 1882, having said on his direct that it was in 1888; that about seven or eight years before the trial, after the conversation, he had had a stroke of paralysis, and that he never had any conversation with Mr. Bonner at any other time, except, as he characterized it. "to pass the time of day"; that between November, 1894, and two months beiore the trial, he had never spoken to any one about the conversation; that he could not recall anything else that happened in the year 1894. The contract was that the plaintiff was to do Mr. Bonner's city work, for which the plaintiff was to receive $100,000 upon Mr. Bonner's death. The city work, as specified by this witness, was not confined to veterinary work, but would include horseshoeing and all other work of the kind that the plaintiff did for Mr. Bonner. Yet the evidence is undisputed that, for all the horseshoeing work that the plaintiff did for Mr. Bonner from the time of this alleged contract to the time of his death, the plaintiff rendered his monthly bills, which were promptly paid. Here is a mere casual conversation at a horse sale with a man with whom Bonner had never conversed before, and we are asked to believe that Mr. Bonner volunteered to the witness the details of a contract involving $100,000 that he had made 18 years before.
The second witness called by the plaintiff was the plaintiff's brother, who was also a horseshoer and had been in the plaintiff's employ. He testiñed: That on February 22 or 23, 1895, he had a conversation with Nr. Bonner at his horseshoeing establishment in Thirtieth street. That he told Mr. Bonner that his brother's business had suffered because of his attention to Mr. Bonner, to which Mr. Bonner replied that the plaintiff had done him a favor years ago through saving his life, and that he said that “he made an agreement with him to pay one hundred thousand dollars at his death. He asked my brother if he wished to be paid monthly, or whether he would rather have it in bulk, and my brother
and 122 New York State Reporter told him that he would ratlier have it in bulk, so that he told him to continue doing his work as veterinary, and when he died there would never be any trouble; one hundred thousand dollars would be left to him." That Mr. Bonner spoke about the plaintiff saving his life. That it was about 25 or 27 years before. Upon cross-examination he stated that Mr. Bonner said, “never mind how my brother had been injured taking care of him or shoeing him; that he had an agreement with my brother some twenty odd years previous that he was to pay him $100,000 at his death. He asked him whether he would rather have the money in a lump or whether have it monthly, and my brother chose in a lump, and he says, 'There will never be any question about it.''
The next witness was a horseshoer, unemployed at the time of the trial. He testified: That he had known the plaintiff for 15 or 16 years when he went in his employ. That in November, 1898, he was sent to Mr. Bonner's stable to take off some horses' shoes. That as he was removing the shoes in the stable he saw Mr. Bonner, who told the witness to come to the house, as he would show him a shoe as a model for one he wished made. That, when he went upstairs with Mr. Bonner, Mr. Bonner asked him how long he had been working for the plaintiff, to which the witness replied, "Twelve or thirteen years." That Mr. Bonner then said: "Well, I know him about thirty years since he has been a boy. About twenty years ago he saved my life, and I then asked him whether he preferred to be paid a monthly payment for his city services, or would he rather have it left in bulk, and he said he expected to take it in a bulk, and I agreed to pay him it and provide for him." That Mr. Bonner continued, "If you guess in a week, you could not guess the amount.” Here, again, the statement that Mr. Bonner made was that he had agreed to pay the plaintiff for “his city services,” or that he was to have it in a bulk, and that the plaintiff said he would take it in a bulk. But the plaintiff's city services would certainly include horseshoeing, for which he was paid monthly.
The next witness was a horseshoer in the employ of the plaintiff, and as plaintiff's employé he had done work for Mr. Bonner. He testified: That he remembered having a conversation with Mr. Bonner about May, 1898, at the plaintiff's office. That the witness was shoeing a horse at that time for Mr. Bonner, when Mr. Bonner asked the witness how long he had known the plaintiff. That the witness said, "Seventeen or eighteen years," when Mr. Bonner replied: "'I know the doctor over thirty years, when he was a boy. The doctor saved my life at one time, and to compensate him for his services, to show my appreciation, I asked the doctor how he would like to be compensated for his services in the city stable—his veterinary services. Would he like me to pay him monthly, or leave him a lump sum, provided he stayed with me always? And the doctor accepted that, and he said he preferred to take the one hundred thousand dollars.' And Mr. Bonner said, "The doctor will be a lucky man for saving my life.'” This is the only witness that injects into the statement by Mr. Bonner that the services to be performed by the plaintiff were veterinary services for which he was to be paid $100,000, and the testimony of these admissions of Mr. Bonner is the only testimony in the case that has the slightest tendency to prove that any such contract as alleged in the complaint was made.
Leaving out of view the improbability of the whole story of Mr. Bon
ner's having any such conversation as is detailed with any of the witnesses, it will be seen how a very slight change in the words used would make a statement of an intention to do something for the plaintiff, or to make some provision for him by will, an admission of a contract. I think that these conversations, assuming them to have been correctly reported, are too indefinite and uncertain to base a finding that any contract such as is alleged in the complaint was made; and, if we assume that these witnesses detailed what they remembered of casual conversations of this kind which had taken place years before, the recollection of such conversations must be so uncertain that the court would not be justified in sustaining a verdict based solely upon them. If such a contract had been made, it is certain that the plaintiff could not have been mistaken as to its character or his rights under it, and that, when he discovered that no provision for him had been made by Mr. Bonner in his will, he would at once have presented a claim based on the contract. It is important, therefore, to consider plaintiff's proceeding immediately after Mr. Bonner's death, to see if it is consistent with the execution of such a contract.
Mr. Bonner died in July, 1899. In August, 1899, the plaintiff consulted with his attorney about his claim against his estate, and it must be assunied that he stated to the attorney the facts in regard to his relations with Mr. Bonner. On the 19th of December, 1901, nearly 27/2 years after he had first consulted his attorney, he sent to the executors of the estate of Mr. Bonner a bill for professional services rendered “to the late Robert Bonner, at city stable, including consultation and advice at house evenings, also professional services rendered at auction sales, horse shows, and other stables," for 23 years, at $3,000 per year, $69.000. To this bill was attached the following note: "Providing 'I receive a check for $25,000 within one month from date, I will receipt the above claim in full.” When this claim was rejected by the two executors, he sent a copy of it to Mr. Bonner's daughter, who was executrix, with a letter dated December 26, 1901, which he closed as follows: "If a party's services for 25 years is not worthy of compensation, there is no justice.” This claim was rejected in December, 1901, and on the 19th day of June, six months afterwards, the plaintiff commenced this action. He makes no explanation of this bill, except that he had sent an informal claim to the executors for $100,000 prior to sending this bill. This claim upon the estate for $3,000 per year for 23 years for services rendered Mr. Bonner is inconsistent with the existence of the contract as alleged in the complaint. The plaintiff, when he submitted this claim (and the claim was submitted after he had retained a lawyer to advise him in relation to it), could have had no understanding that there was an express promise to pay him $100,000. It seems to me that no verdict of a jury founded upon such evidence, contradicted as it is by this claim for services based upon an obligation to pay $3,000 per year, would for the moment be permitted to stand. The court left it to the jury to say whether or not any contract at all was made between the plaintiff and the deceased, Mr. Bonner, because, if there was no contract, thev need not go further, “that will end the case, and your verdict must be for the defendants.” The jury found a verdict for the defendants.
and 122 New York State Reporter Entertaining the view that I have expressed in relation to the proof of the plaintiff in this case, unless there was a material error in the ruling upon evidence or in the charge to the jury which related to the making of the contract, it seems to me that it would be improper to reverse the judgment. The plaintiff relies upon many exceptions which are scattered through this record to rulings upon questions of evidence. The most important seem to be the refusal of the court to admit certain entries made by Mr. Bonner in a small notebook in relation to the plaintiff. It seems that Mr. Bonner was in the habit of keeping a notebook in which he entered incidents in relation to his horses and their treatment. Scattered through these notebooks there are entries made by Mr. Bonner relating to opinions expressed by the plaintiff as to the proper treatment of horses, principally in relation to their feet or the method of shoeing, sometimes agreeing with the plaintiff and sometimes disagreeing with him. If there had been any question presented upon this trial as to whether or not the plaintiff performed the services required of him by Mr. Bonner, these entries would have been material. The evidence was undisputed that Mr. Bonner had employed the plaintiff for 23 years prior to his death; that during that time Mr. Bonner was in the habit of sending for the plaintiff and consulting with him about his horses; that he would send for him to go to his farm at Tarrytown to attend to his horses; and that he was constantly engaged in doing work for Mr. Bonner. There is no evidence that the plaintiff ever refused to do anything that Mr. Bonner asked him to do, nor is there any such defense set up in the answer or insisted upon at the trial. If such a contract as is alleged in the complaint had been made, and Mr. Bonner had become obligated to pay to the plaintiff $100,000 at his death, in consideration of the plaintiff's promise to do such veterinary work as Bonner requested during his life, there would be no question upon this record but that the plaintiff would be entitled to recover. Assuming that the entries in this book were competent evidence, if they had related to any subject about which there was a contest upon the trial, they were all entirely irrelevant upon the question as to whether or not a contract was made; and as that was the substantial question presented, and upon that issue the plaintiff has failed to sustain the allegations of the complaint by sufficient evidence, I do not think we are called upon to reverse the judgment.
The plaintiff also endeavored to prove conversations with the executors of the estate prior to the bringing of the action, and offered in evidence a long communication which he had sent to the executors in relation to his claim, objections to both of which the court sustained. This evidence could have had no bearing upon the main question at issue, namely, whether or not a contract was made. The plaintiff was allowed to testify that he had made a claim for $100,000 upon the estate prior to the presentation of his claim for $69,000, and that fact was all that was essential. None of the other exceptions require consideration, in view of the opinion that we have expressed as to the probative force of the plaintiff's evidence. The jury having determined this question of fact in favor of the defendants, we are not justified in setting aside the verdict.
It follows that the judgment and order appealed from are affirmed. with costs. All concur, except VAN BRUNT, P. J., and HATCH, J., who dissent.