This is an action of assumpsit by John Staylor against Roger T. Gill, administrator of Catherine Staylor, to recover for thirteen years of continuous service rendered her. Issues were joined upon pleas that neither defendant nor his decedent were ever indebted as alleged, nor ever promised as alleged; that the action did not accrue within three years before suit brought; and that the assets of the estate are not sufficient to pay all the decedent's debts, regard being had to the alleged debt of the plaintiff. Mrs. Staylor's husband was a butcher, and the plaintiff was his nephew, and learned his trade with him. After his death in November, 1885, Mrs. Staylor continued the business which was carried on for her by the plaintiff and her brother, Albert W. Lutz. There was no dispute as to the rendering of any of the services alleged, the only questions being as to the compensation, and whether full payment had been made. The plaintiff was permitted to testify on his own offer without objection, and he swore that he worked for Mrs. Staylor uninterruptedly from July 5th, 1886, to October 14th, 1899, during all of which period, he received his board from her but no money whatever for his services, and it is a singular feature of the case that he was absolutely silent as to any agreement or understanding, express or implied, for any compensation *Page 465 for his services. He testified, however, that in the interval between his uncle's death and his going to work for Mrs. Staylor that he rendered similar services to one Courtney, and received from him his board and five dollars per week; and one Krout, who worked there with him, testified that Staylor showed him two letters from Mrs. Staylor asking him to return and work for her and promising him the same wages he received from Courtney, which Krout says were fair wages for the work. Maggie Donovan, who lived with Mrs. Staylor from 1886 to 1890, testified that she heard Mrs. Staylor tell John he was to get $5.00 a week, and that she also told John in her presence, that Maggie and John, at her death, would get what belonged to her for working for her and attending to her. Mrs. Edwards and her sister, cousins of Mrs. Staylor's husband, testified that they heard her say in 1898, that she had willed everything to John, but that they knew nothing about any wages he was to receive. Mrs. Lafferty, who was a neighbor of hers for many years, heard her say that at her death everything she had would go to John and Maggie. John McKewen heard her say on several occasions, that when she died, the business and the house would be John's, and that she was saving his money for him. These, and several other witnesses who testified to plaintiff's services and their reasonable value, without any knowledge of the terms on which he was employed, were produced by the plaintiff, and at the close of the plaintiff's testimony, the defendant offered two prayers: One, that there was no legally sufficient evidence to establish a contract, implied or expressed, between the plaintiff and Mrs. Staylor, and one, that there was no legally sufficient evidence to entitle the plaintiff to recover, both of which were rejected, and their rejection is the ground of the first exception. Neither in the brief nor in the oral argument was this exception alluded to, and we may, therefore, presume it was abandoned, but it is in any event obvious from the recital of the testimony we have given that there was no error in this ruling.
The fourth exception was taken to the asking and answering *Page 466 of a question permitted by the Court as to whether the Knights of Pythias, of which plaintiff was a member, was not virtually an insurance society. The relevancy of such testimony is not apparent, nor is the injurious consequence of its exclusion apparent, assuming it to be admissible upon any theory of the case, and we shall not pause therefore to consider it.
The second and third exceptions were taken to the refusal to permit the defendant to read in evidence from a memorandum book, entries by Mrs. Staylor of payments made to the plaintiff on account of his wages, which offer was twice made and refused. These exceptions will be considered together. Lutz testified for the defendant that Mrs. Staylor was his sister, and that he was employed by her in her business from 1887 till her death in 1899; that she agreed to pay and did pay him five dollars a week without board; that the plaintiff was to receive three dollars per week with board; that he knew his sister's handwriting anywhere; that he and his sister settled up every week of their lives, and plaintiff was present at these settlements. Lutz was then shown a memorandum book in lead pencil containing entries of regular weekly payments of three dollars each, alleged to have been made by Mrs. Staylor to the plaintiff from June 1st, 1897, to July 5th, 1899, and Lutz testified these entries were in the handwriting of his sister. There was no heading of these entries with the name of plaintiff, nor anything on the face of the writing to show to whom the payments were made. At this point in the testimony of Lutz, the offer was first made and refused, and as he had in no manner connected the plaintiff with these entries by his testimony, we think, the offer was properly refused at that time. Continuing his testimony, however, Lutz said, "Every Tuesday was our settling day. John Staylor would be at my right side, and Mrs. Staylor would be sitting down just settling up the business for the week. He (John), never missed a time getting paid to my knowledge. She always paid him with three dollars, and he would be sitting there and he would take it; all was dotted down on that book at the time we settled; *Page 467 every week Johnny got three dollars and his board. I was in contact with John Staylor every day, and every hour in the day. He never said a word to me about any charges he intended to make. The last time I saw a payment by Mrs. Staylor to John, was three weeks before she died." The defendant then produced five witnesses whose testimony tended to prove that John Staylor had agreed to work for Mrs. Staylor for three dollars a week and board, and some of these testified they had seen these wages paid at various times, and entered by Mrs. Staylor in a book, and the defendant then renewed his offer to read these entries to the jury, which was again refused. It is of course clear, both upon principle and authority that entries made by a party himself charging another, are not admissible as evidence per se. Such entries stand upon a different footing from those made by a clerk or other person in the ordinary course of busines and contemporaneously with the transaction, and in Romer v.Jaecksch, 39 Md. 589, it was observed that though Mr. Greeenleaf says in his work on Evidence, vol. 1, sec. 118, that in the United States this principle has been carried farther and extended to entries made by the party himself in his shop books, yet this extension of the doctrine has not been sanctioned in Maryland, where the rule of the common law in this respect has not been departed from. But we think the evidence was admissible on a principle of a distinct character. Lutz had testified that he had seen the weekly payments of three dollars for wages made to plaintiff by Mrs. Staylor, and entered at the time in a book in her handwriting. If a book containing such entries in her handwriting can be produced, it is certainly strong corroboration of Lutz' testimony, and the appellant contends these entries are admissible for that purpose.
In Digby v. Stedman, 1 Espinasse, 328, plaintiff had delivered to defendants a watch for repairs, and while in their hands he sold it and gave the purchaser an order for its delivery. In an action of trover, defendants claimed they had delivered it pursuant to plaintiff's order, but the purchaser swore he had never received it. It was proved by defendants' shopman that *Page 468 he had himself seen the watch delivered to the purchaser, and the defendants' shop-books were then offered, in which was an entry of such delivery, in the handwriting of one of the defendants. On objection, LORD KENYON said: "The entry in the book was brought to corrobrate the testimony of the witness, who had himself seen the delivery; that the entry should regularly be in the handwriting of the witness, but where the entry was made in the handwriting of another, and the witness saw it soon after it was made, and the entry had corresponded with what he had himself then observed, such was tantamount to an entry made by himself, and was therefore admissible."
In Cooke v. Curtis, 6 H. J. 93, the rule was laid down that where the credibility of a witness is attacked by the opposite party his prior declarations may be given in evidenceto show his consistency. In Washington Fire Ins. Co. v.Davison, 30 Md. 104 and 105, this rule was approved, the Court, saying "we are clearly of opinion the testimony was admissible tocorroborate Davison, whose credibility had thus been impeached by defendant's witnesses. The ruling falls directly within the decision in Cooke v. Curtis, supra, and the rule of evidence of which that case is an illustration." Here plaintiff's denial that he had ever received a cent for his wages was a direct impeachment of the testimony of Lutz that he had seen them regularly paid and Mrs. Staylor's entries being under the ruling in Digby v. Stedman, supra, tantamount to entries by Lutz himself, are his prior declarations of such payment. An illustration of the limitation upon the application of this rule is found in Stocksdale v. Cullison, 35 Md. 325. There upon issues whether the signatures of the alleged testator and subscribing witnesses (all of whom were dead) were forgeries, the caveators gave evidence tending to implicate George Stocksdale, one of the caveatees, in the alleged forgeries, and the caveatees after offering evidence of the genuineness of these signatures, offered to prove that the day before the funeral of the deceased, the witness inquired of George Stocksdale whether there was a will of his father's in existence, and *Page 469 that he replied he believed his father died intestate; the contention being that this answer was pertinent and proper to repel the inference of his agency in procuring the alleged forgeries, and reliance was placed upon the two cases above cited. But the Court held otherwise, because Stocksdale was not examined as a witness as he might have been, and there was therefore no impeachment of his testimony given under oath, and it was very properly added as an independent reason for the ruling in that particular case, that if his declarations had been admitted, they would have furnished no rational ground for repelling the imputations against him, because such declarations would be perfectly consistent with the concealment which always accompanies fraud.
In the leading case of McAleer v. Horsey, 35 Md. 462, this question was very fully and thoroughly considered, and the cases of Cooke v. Curtis, and Wash. Ins. Co. v. Davison, were approved in an able opinion by JUDGE MILLER, in the course of which he said: "Where two parties contradict each other under oath, respecting a matter occurring between themselves only, and about which they have equal means of knowledge and equal reason for accurate recollection, it is in vain to argue that one of them has not sworn falsely. The defendant's testimony, therefore, went to a substantial impeachment of the credibility of the plaintiff. * * * * * The fact that it went to the jury, opened the way for corroboration, notwithstanding the disclaimer, and brings the case directly within that of Cooke v. Curtis, 6 H. J. 93, which was followed in Wash. Fire Ins. Co. v.Davison, 30 Md. 91. The first of these cases has remained unquestioned by the Courts of this State for nearly fifty years, and whilst it would not be expedient or safe to extend or enlarge its application, yet it has been the uninterrupted practice of all Courts to receive their own decisions as of binding force, and on general principles of judicial propriety, the solemn adjudications of an appellate Court of last resort, `ought to be approached with caution, and perhaps they should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed.' *Page 470 Hammond v. Ridgely, 5 H. J. 278. No such considerations are here involved, and that case is therefore a binding authority on this Court, no matter what may be the law decided by Courts of other States, or elsewhere, and whilst its doctrine is not to be expanded, there ought to be no hesitation in applying to a case falling directly within the rule and principle it establishes."
Thirty years have passed since that decision was rendered, and during this period it has been repeatedly cited and approved. InBloomer v. State, 48 Md. 537, it is said: "The admissibility of this species of evidence has been very deliberately sanctioned by this Court in the cases cited by the State in 30 and 35 Md., and again in the case of Maitland v. Citizen's Bank,40 Md. 540." In two later cases the reasons which lie at the foundation of this rule are stated with equal clearness and condensation. InOwens v. State, 67 Md. 315, the Court, speaking of testimony of this character, says: "It is certainly true that to exclude such note or memorandum, when shown to have been honestly made, would be to reject the best, and frequently, the only means of arriving at truth." And in City Pass. Ry. Co. v. Knee,83 Md. 81, the Court, referring to the testimony admitted in the 30th Md. case, says: "It furnished both a test of his (the witness) recollection and his integrity." Sec. 2 of Art. 35 of the Code of Public General Laws provides "that it shall not be competent forany party to the cause, who has been examined therein as a witness, to corroborate his testimony when impeached, by proof of his own declarations or statements made to third persons out of the presence or hearing of the adverse party." The entries made by Mrs. Staylor in this case as testified to by Lutz, we have said, under the authority of Digby v. Stedman, supra, are equivalent to entries made by himself, and to his own declarations, but they were made in the presence of Staylor, and therefore would not seem to be excluded even if Lutz were a party to the cause. He is not a party however, and can therefore in no event be brought within the prohibition of this statute. *Page 471
We are therefore clearly of opinion that there was error in refusing to allow the entries of Mrs. Staylor to be read in evidence upon their second offer.
At the close of the testimony the plaintiff offered two prayers which were granted, and the defendant offered sixteen prayers, of which eight were conceded, three were modified and granted as modified, and five were rejected. The defendants excepted to the granting of the plaintiff's prayers, and to the rejection and modification of his own prayers. Without reciting the plaintiff's prayers, we think the propositions of law embodied in them substantially correct, and that when read together, and in connection with the defendant's granted and conceded prayers, they fairly present to the jury the questions at issue. Some verbal criticism might be made upon that part of plaintiff's first prayer which allows the jury to find "for the value of said services according to the proof in the case," by which however we think the jury must have understood, the reasonable value if they found no contract upon the value, or the agreed price if they found any agreement upon this point. It is apparent we think that the second prayer was intended as a qualification of the first prayer. It refers to the first prayer, not by number, or other express designation, but by repeating the conclusive fact of the hypothesis on which the first prayer was founded, whilst explaining what constitutes a member of a family, and what was meant by the expression in the first prayer "the value of said services according to the proof in the case." This is a case, we think, of qualifying, not contradictory, prayers. Rosenstock v.Ortwine, 46 Md. 400; P.W. B.R.R. v. Larkin, 47 Md. 166. Taken together, as they should be, they furnish the true rule of recovery, either upon the theory of quantum meruit, or of express contract, and also properly apply to either theory the defense of limitations. But the appellant contends that plaintiff's second prayer however correct in itself, is inconsistent with defendant's fifth and eight prayers which were conceded, and that plaintiff's prayer could not therefore be properly granted. Defendant's fifth prayer requires the jury to find that there *Page 472 was, at the time the services were rendered, a design on the part of the plaintiff to charge, and an expectation on the part of Mrs. Staylor to pay, for such services; and the eighth prayer instructs the jury that if they find any portion of plaintiff's claim was due three years before suit brought, then under the pleadings there can be no recovery for such portion, unless they find a new promise within three years. The supposed inconsistency between the plaintiff's second and the defendant's fifth prayer, is, that the former asserts that if plaintiff was not a member of the family, the rendering of the services furnishes prima facie evidence of their acceptance, and raises an obligation to pay what they were worth; while the latter requires the jury to find the design to charge and the expectation to pay.
The proposition asserted in plaintiff's second prayer is the same laid down in Spencer v. Trafford, 42 Md. 20, and repeated in Wallace v. Schaub, 81 Md. 599.
In Bixler v. Sellman, 77 Md. 496, and also in Wallace v.Schaub, supra, it is declared that the rule above, as to the design to charge and the expectation to pay "applies only when a claim is made by a member of the family of the decedent" for, as JUDGE FOWLER states in Bixler v. Sellman, "of course it must be conceded that generally the law implies a promise to pay for services rendered and accepted; but a well recognized distinction exists where the service is rendered by a member of the family of the person served. In the latter case a presumption of law arises that such service is gratuitous." When this exception to the rule is borne in mind, the apparent inconsistency is seen to be only a proper qualification by plaintiff's second prayer, of the general language of defendant's fifth prayer, and to be based upon evidence from which the jury might find, either that the plaintiff was, or was not, a member of his aunt's family. And so also when the plaintiff's second prayer is read as a qualification of his first prayer, the instruction as to limitations becomes an element of the second prayer, and thus any apparent inconsistency between that prayer and defendant's eighth prayer upon that point disappears. *Page 473
But the appellant further contends that both of plaintiff's prayers are fatally defective, because they disregard the evidence produced in respect to assets, as well as the pleading in reference thereto, and authorized a verdict in excess of the assets shown.
Sec. 25 of Art. 26 of the Code provides that where an administrator is sued, if he conceives he has not assets sufficient to discharge the plaintiff's claim, he may plead the fact and "a trial by jury shall be thereupon had." In this case, the administrator has pleaded such insufficiency of assets, to which plea plaintiff replied that there are sufficient assets, and issue was joined on that replication as well as upon the general issue pleas and the plea of limitations.
Sec. 26 of Art. 26, further provides that if on any suchtrial, the debt or demand of plaintiff shall be contested, and there be any other issue joined than upon the subject of assets, the jury, if they find for the plaintiff upon the issue so joined, and the amount of assets found by them, be less than the debt or demand of the plaintiff, shall declare the amount of the debt or demand, and also the sum to be paid by the defendant to the plaintiff, regard being had to the amount of the assets in hand, and the debts due from the deceased; and that judgment shall thereupon be entered against the defendant for the penalty of the bond (if suit be upon the administrator's bond), or for the damages laid in the declaration, and the costs of suit (if suit be against the administrator only), to be released upon payment of the sum ascertained to be paid by the verdict of the jury; and by subsequent sections of Art. 26, provision is made for levying the sum so ascertained, either of the goods and chattels of deceased, or of the proper goods and chattels of the administrator; and for levying the residue of the debt or damages, of the goods and chattels of deceased which may thereafter come to the hands of the administrator. These provisions of the Code were not observed. The jury did not pass at all upon the sufficiency of assets, though the undisputed evidence shows that the assets were less than the damages claimed, and less than the amount of the verdict rendered, and it is plain, therefore, that *Page 474 the judgment was not regularly and properly entered, and that judgment would have been arrested upon motion seasonably filed. There was no such motion, however, and the regularity of the judgment therefore is not before us for review. Neale v.Hermanns, 65 Md. 478. The verdict for $3,000 was rendered January 30th, and judgment nisi was thereupon entered. February 1st, motion was filed for a new trial, and was overruled February 16th, when judgment was made absolute, and on the same day the following docket entry was made: "Judgment only to bind assets by agreement of counsel in open Court." The record is silent as to what led to this agreement, but we were informed at the argument that it was the result of a suggestion from the Court that such course would be better than burdening the jury with the requirements of Art. 26 above mentioned, and we inferred that this agreement in fact preceded the rendition of the verdict, and explains why those provisions of the law were ignored in the prayers of the plaintiff. In the absence of such agreement, we think the plaintiff's prayers would be fatally defective, because under them the right to recover against the defendant, was placed, both in disregard of the pleading and of the evidence as to assets, solely upon the proof and amount of the debt claimed, without regard to the amount of assets in hand. This was clearly error. Balt. Elevator Co. v. Neal, 65 Md. 457. But we think the agreement that the judgment should only bind assets, operates as a waiver of that defect in the prayers, and is equivalent, sofar as that defect is concerned, to a concession of those prayers. A party may concede any prayer for reasons satisfactory to himself, and such prayer when conceded, becomes the law of the case, and may not be refused by the Court. Sittig v.Birkenstack, 35 Md. 278.
This brings us to the defendant's prayers. There was no error in the rejection of his first and second prayers by which it was sought to withdraw the case from the jury. The fourth prayer was properly rejected, if for no other reason, because the fifth which was conceded, gave him everything he could have secured under the fourth in connection with plaintiff's prayers. *Page 475
The ninth and sixteenth prayers were properly rejected, because they segregate the facts, and instead of confining the conclusion to the effect of these facts they conclude to the whole right of recovery.
There was no error in the rejection of the sixth, seventh and eleventh prayers as offered, or in the modification of these prayers by the Court, and then granting as modified but for the error we have indicated in the third exception the judgment must be reversed.
Judgment reversed with costs to appellant above and below, andnew trial awarded.
(Decided June 13th, 1901.)