This suit arises out of a claim for $60,000 made by appellee Sidney R. Caswell, herein called plaintiff, against the estate of Lydia E. Smith, deceased. Plaintiff asserts that, in consideration of an abandonment by him in 1919 of a plan to remove his family from Ludington to *Page 391 Detroit, where he had employment with a manufacturing concern at an annual salary of $3,000, and of his continuing to maintain his family residence in Ludington nearby that of Miss Smith, so that he and his family might continue to render services to her as they had theretofore done, Miss Smith agreed she "would at her death give or leave to the said Sidney R. Caswell a sum of money that the interest thereof would amount to the sum of $3,000 per year." Miss Smith died January 30, 1930. By her will executed February 11, 1926, Miss Smith disposed of all her estate, inventoried at upwards of $160,000, without provision of any kind for plaintiff or any member of his family. On the basis of having fully performed this alleged agreement, plaintiff filed a claim for $60,000 against the estate of deceased. In probate court the claim was allowed, and on appeal to the circuit court the jury found for plaintiff. From a judgment entered in accordance with the verdict, the estate has appealed.
The record discloses that from 1912 until the death of Miss Smith in 1930, plaintiff's family lived in the same neighborhood and in close association with the deceased. Prior to the date of the alleged agreement (1919), both Mr. and Mrs. Caswell, as well as their children, had almost continually performed services of varied character for Miss Smith. Many times, if not quite universally, these services were performed at the request of Miss Smith and without any compensation therefor. Aside from persons at times employed in her household, Miss Smith lived alone. The services rendered both before and after 1919 by plaintiff and members of his family included general assistance in relation to the care and upkeep of Miss Smith's home, and her personal needs both in health and in sickness. Such *Page 392 services were also rendered incident to aiding Miss Smith in social matters and in taking her about in plaintiff's automobile. Plaintiff asserts that Miss Smith desired to have such relations and services continue during the remainder of her life, and to accomplish that purpose she made the above-noted agreement with plaintiff.
Because of the statute relative to testifying to matters equally within the knowledge of the deceased, plaintiff could not and did not attempt to testify relative to the agreement upon which he relies (3 Comp Laws 1929, § 14219). The direct testimony on this part of the record was given by plaintiff's wife and Mrs. Jessie Dodds. From Mrs. Caswell's testimony we quote:
"Miss Smith said (to plaintiff) 'If you will stay here, I will give you an amount that will bring you $3,000 a year in interest.' (To this Mr. Caswell replied) 'Miss Smith, I will take you up on that, and if you should change your mind at any time, let me know.' * * * From the time of this talk in 1919, Miss Smith never expressed any dissatisfaction or change of mind to me. * * * Why she told him it was the family she wanted to stay here in Ludington; she wanted to have the companionship of the family, and wanted them to be with her and help her, and do anything she wanted done — or me. * * *
"Q. Was there anything said there in that talk, as to how long these services were to continue; that is, how long you were to stay in Ludington?
"A. Why until her death."
Mrs. Jessie Dodds, referring to her being present in the Caswell home at the time of the alleged agreement, in part testified:
"Miss Smith was deeply grieved to know that Mr. Caswell was thinking of going away, and she said: 'Lizzie (Mrs. Caswell), this cannot be. * * * *Page 393 I need you people here. * * * I cannot have you leave me now.' * * * Shortly, Mr. Caswell came; and then she said to Mr. Caswell: * * * 'Sidney, you are not thinking of going away and leaving me in my old age; I cannot have your family leave here, * * * I want you here.' * * * And she asked him what his salary would be. * * * He said $3,000. * * * And she said: 'Sidney, you cannot leave me now, my boy;' and she says 'How would a nice sum, with interest alone to pay you $3,000 a year, would this mean anything to you, Sidney, my boy?' Those were her exact words. * * * He did not reply at once, * * * and he left the room, and Miss Smith and Mrs. Caswell continued the conversation. * * * And Sidney returned, and said: 'Miss Smith, I have thought this over, and I am going to take you up on it. * * * If the occasion should come when there will be any changes in this, I want to know.' And she said: 'There will be no changes.' "
Aside from the foregoing there was testimony of other witnesses which to a greater or less degree was corroborative of that just noted. We quote from two only. Agnes Brandt testified as follows:
"Miss Smith told me the Caswells were planning to go away, and she persuaded them not to go, and told them they would not be sorry if they stayed, so they stayed. She told me they stayed under that arrangement. She didn't say just what the arrangement was."
Vinette Yockey, testifying to a conversation between herself and Miss Smith while on a Sunday afternoon auto ride, said:
"And she (Miss Smith) was telling how much she appreciated that (the care and attention given her by the Caswells); and then she said 'But they won't be unrewarded for all the kindnesses they have done for me,' she said, 'because when I die they will *Page 394 get amply paid; I am going to leave them money that will be payment for all this that was done * * * they are to be rewarded beyond their greatest or fondest expectations.' "
It is not seriously controverted that the members of the Caswell family continued to render Miss Smith during the balance of her life the same services after the date of the alleged agreement as theretofore. Instead, the main issue here presented is whether the alleged agreement was established by competent testimony. Appellant asserts that because the alleged contract contemplated the rendering of services by Mrs. Caswell, which services were of such a character that she could recover for them in her own right, she is excluded from testifying to matters equally within the knowledge of the deceased (3 Comp. Laws 1929, § 14219), either because she must be considered a party to the contract, or because recovery by Mr. Caswell for his wife's services of this character must be on the theory that her claim has been assigned to him, in which case the statute applies to her as an assignor. In this connection it must be borne in mind that the contract between Miss Smith and Mr. Caswell was entered into in the presence of Mrs. Caswell. Under such circumstances if Mrs. Caswell co-operated with her husband in the performance of the contract, knowing that he was to be compensated therefor, she could not be heard to assert a claim in her own right for the same services. Under the contract as asserted by plaintiff, he assumed the responsibility of securing the co-operation of Mrs. Caswell to enable him to perform the terms of the agreement and understanding he had with Miss Smith. If he fully performed his contract, it was nonetheless binding on Miss Smith because to some extent he was *Page 395 assisted in such performance by Mrs. Caswell. On the other hand, had he not been so assisted by the co-operation of Mrs. Caswell, obviously he would have breached the alleged contract and could not recover. It seems plain that the contract on the one side was wholly the undertaking of Mr. Caswell, and that his wife was not one of the contracting parties, nor was she an agent of plaintiff in consummating the contractual relation. See Weessies v. Van Dyke's Estate, 159 Mich. 180. We think it is equally clear that under this record Mrs. Caswell does not stand in the position of an assignor as to any portion of the claim asserted by her husband. She had no interest in the contract as such, nor has she any interest, in a legal sense, in money recovered by Mr. Caswell in consideration of performance of his undertaking with Miss Smith.
"An interested witness' is one who has a pecuniary interest, having prospect of gain or loss.
"Relationship does not constitute a witness an interested one, but the fact of relationship should be considered as regards credibility." Denevan v. Belter (syllabi), 232 Mich. 664.
The trial court was correct in holding that Mrs. Caswell, notwithstanding the statute, was competent to testify to matters equally within the knowledge of the deceased.
Appellant further asserts that the record does not show or sustain a cause of action in favor of plaintiff. In this connection it should be borne in mind, as stated in appellee's brief:
"There has never been any claim urged by claimant that he was to receive his compensation by will. His claim is that it was a money debt, the amount of which was fixed and collectible upon the death of the deceased." *Page 396
As quoted above, appellee's claim is that deceased "would at her death give or leave to the said Sidney R. Caswell, a sum of money that the interest thereof would amount to the sum of $3,000 per year." Notwithstanding appellant's contention to the contrary, we are satisfied that the record contains testimony, in part hereinbefore quoted, sufficient to sustain the jury's finding that the agreement was made as alleged; and it cannot be said as a matter of law that the record does not "show any cause of action in favor of claimant." The agreement or contract on which plaintiff relied was not testamentary in character, and therefore was not void because not in writing. Nor was plaintiff's right to recover barred by the statute of limitations. This phase of the case is controlled by Bassett v.American Baptist Publication Society, 215 Mich. 126 (15 A.L.R. 213). The issue of performance by plaintiff was properly submitted to the jury and determined in plaintiff's favor.
Mrs. Caswell also filed a claim against the estate of deceased for care and services rendered. It appears from the record that this claim of Mrs. Caswell in whole or in part is duplicated by plaintiff's claim herein. Appellant offered in evidence the claim sworn to by Mrs. Caswell and filed in the Smith estate, claiming it was relevant, competent, and material as tending to show the incompetency of Mrs. Caswell to testify as a witness, and also to show a breach of the alleged contract by plaintiff, in that it gave rise to the inference that he had not complied with the terms of his contract requiring continuation of the services theretofore rendered by Mrs. Caswell to Miss Smith. After filing Mrs. Caswell's claim nothing further was done relative thereto; and it was asserted to the trial court that the *Page 397 claim was so filed to enable Mrs. Caswell to recover for services rendered and which constitutes a part of plaintiff's claim herein in the event he failed to recover in the instant case. Plaintiff's counsel also represented Mrs. Caswell relative to her claim; and such counsel repeatedly stated to the trial court that in the event of recovery by plaintiff in this case no claim could or would be made by Mrs. Caswell to recover from the Smith estate for the same services. The trial court ruled that this testimony might be "unconditionally" received, but not alone for the restricted purposes for which it was offered by appellant. In this connection the trial court said to appellant's counsel:
"If you wish to introduce this (Mrs. Caswell's claim) in evidence, upon the question that she (Mrs. Caswell) has taken two inconsistent positions here, and as bearing upon the weight that should be given to her testimony, I am willing to receive it."
Appellant's counsel replied:
"I am not offering this as an admission by Mrs. Caswell. I do not propose to qualify her as a witness. Even as an admission against him, I won't offer that as an admission; as a contradictory statement to the evidence she gave. I do not propose to offer it as a contradictory statement to the evidence she gave as a part of her cross-examination."
Under the circumstances, there was no error in excluding the testimony as being incompetent for the purposes for which it was offered. The competency of Mrs. Caswell's testimony was a question of law for the court and not a question of fact for the jury; and under the circumstances above outlined the proffered proof did not tend to establish a breach of plaintiff's contract or partial failure of *Page 398 consideration. There was no error in the ruling of the trial judge excluding the testimony, in view of the restrictions imposed by appellant.
The inventory of Miss Smith's estate totaling in excess of $160,000 was received in evidence. Appellant objected on the ground that the inventory, showing the amount of her estate in 1930 was of no evidentiary force as to the extent of her possessions in 1919, the date of the alleged agreement; and therefore the offered proof was immaterial, it not having any bearing upon the probable consummation of the 1919 agreement on which plaintiff relies for recovery. When the inventory was received in evidence, at the request of defendant's counsel, the court charged the jury:
"And further, I charge you, that it (the inventory and appraisal) is not evidence of the existence of the properties therein described, nor their value, at the time it is claimed the plaintiff, Sidney R. Caswell, entered into the contract with Miss Smith, for which suit is here being brought, if there was such a contract; neither is it evidence of the present values of those securities. It is received merely as the list of property, and the appraisal of the appraisers as of the time it bears date and for nothing else."
It may be noted that the inventory was at least competent as tending to corroborate the testimony of Miss Vinette Yockey (and other testimony of like character) to the effect that the deceased only shortly before her death had said the Caswells would "be rewarded beyond their greatest or fondest expectations." The extent of her estate as disclosed by the inventory at least indicated ability on the part of the deceased to so reward the Caswells, and it bore upon the probability of her having made *Page 399 statements of this character, to which various witnesses testified. Further, in view of the fact that the alleged agreement was of a continuing character, under which plaintiff claims he and members of his family continued to render service to Miss Smith to the time of her death, we think the inventory of her estate showing she was possessed of ample means had some evidentiary bearing upon plaintiff's claim of continuing to perform under the contract during the period from its inception in 1919 to the death of Miss Smith in 1930. In view of the precautionary instruction given to the jury at the time the inventory was received in evidence, the ruling of the court was not prejudicial.
In appellant's brief it is asserted that no proof was offered that the service rendered by plaintiff and the members of his family was so rendered in performance of the alleged contract. This contention cannot prevail in the face of the fair and reasonable inferences which the jury had a right to draw from the testimony as a whole, and especially from the testimony as to the declarations of Miss Smith made shortly prior to her death, as testified to by Miss Yockey and others. We find no reason for disturbing the verdict of the jury or setting aside the judgment entered in the circuit court. It should be affirmed, with costs to appellee.
McDONALD, C.J., and CLARK, J., concurred with NORTH, J.