I dissent.
This action was brought to recover, among other things, a balance due for the reasonable value of services rendered, according to the direct promise of the defendants to pay, as the court found, less certain amounts the plaintiff had received on the contract price. The finding of the trial court was that the plaintiff was entitled to pay for fifteen months and nine days at one hundred dollars per month, upon which amount she had received $1,105, leaving a balance of $425, in which amount she was given judgment against the defendants.
There was nothing formal about the claim of which she spoke to the attorney for the estate, referred to in the majority opinion. The instrument was not dated, nor signed, nor verified, nor directed to anyone, nor filed, nor was it entitled in the Stine estate; it consists of figures principally, having the appearance of being intended to assist one in refreshing the memory in discussing the matter; and, when the attorney for Mr. Collins, executor, to whom she spoke of the matter, told her the court would not allow her anything, she did not present or file any claim against the estate, even for the furniture, carpets, and bedclothing destroyed by Mr. Stine.
The trial referred to in the note accompanying the bill presented by Mrs. Reed to Mrs. Rose Etsell, mentioned in the majority opinion, was an unsuccessful contest of Mr. Stine's will. As to the presentation of the bill to Mrs. Rose Etsell, Mrs. Etsell testified:
"Q. Did she ever present a claim to you for any portion of this bill? A. Well, she did present that bill after the estatewas settled. Q. How did she do that. A. Well, in writing. Q. In a letter? A. In two bills I believe. One might have been a letter and then the other one a bill. I don't remember that. Q. *Page 340 And that is this paper marked Defendants' Exhibit 2? A. Yes, that is a letter, and then here is a bill. Yes."
This bill was presented about two years after Stine's death. The majority opinion says:
"This was the first demand for payment respondent ever made on any of the appellants."
This appears to be true; Mrs. Reed respected the terms of her contract with them. The Etsells told her, as set out in the majority opinion:
"When everything is over we will settle up with you and we will do well by you, and we will settle when everything is over. You just take care of Mr. Stine and when we get his money we will pay you well."
On this same subject, upon testifying that the Etsells agreed to pay her, Mrs. Reed, on cross-examination, said:
"Q. And you never did present a bill during this time that Mr. Stine was living there? A. I was not supposed to."
The principal controversy is whether the Etsells made a direct, original promise to the respondent to pay for the care of Mr. Stine, or whether their promise was collateral to one by Mr. Stine. There was no evidence that, in making the arrangements, Stine requested or expected the Etsells, or either of them, to act as agents for him. Learning that Mrs. Reed cared for sick persons at her residence, the Etsells called on her, one or more at a time, on two occasions, a week or more prior to placing Stine there for the care and attention he later received, to arrange for putting him there as a patient. Mrs. Reed did not know Mr. Stine, nor had she had any communication with him until he actually entered the home.
The Etsells made the arrangement personally, and it is perfectly evident that, in doing so, they purposely *Page 341 withheld from Mrs. Reed anything like a fair and honest account of the wretched and helpless condition, both mentally and physically, of Mr. Stine. "After she had him a few days," and becoming aware of how she had been imposed upon, she told the Etsells to take him away; that she could not care for him for the amount being paid. That is, she did not tell Mr. Stine that he must leave, nor insist upon his paying more, but she reported the situation to the Etsells, who made the arrangements with her, that they must take him away, that she could not keep him for the amount they agreed upon. The answer of the Etsells was their direct personal contract by which they induced Mrs. Reed to take care of him, saying, as mentioned in the majority opinion, "Well, we have been everywhere and tried to get him in, and we figuredif we told you exactly how he was you would not take him;" and further, that they said,
"We will pay you well. . . . He won't pay you more, but wewill, when everything is over we will settle up with you and wewill do well by you; and we will settle when everything is over, you just take care of Mr. Stine and when we get his money wewill pay you well."
She repeated the same statements at another time in answer to a question that the Etsells told her,
"When everything is over we will settle up with you and we will do well by you, and we will settle when everything is over. `They says we can't do it now.'"
She stayed by her contract with them, and now that at least one of them has come into a large inheritance, about eight thousand dollars, under Stine's will, and the time has come for the respondent to receive the balance due her under the terms of her contract with them, appellants are allowed to escape.
In giving the evidence with respect to the contract, *Page 342 the majority opinion fails to mention what to me appears to be important testimony. Without doubt, the Etsells were all working together to have their family friend and prospective donor taken care of. Respondent testified that they, George Etsell and his wife, asked her to take care of Mr. Stine; that they were interested in his property; that a part of it had been willed to George Etsell; and that "they told me they would pay me well." That they told her Stine was stingy and would not pay her enough, but that they would pay her well. The same promise was made by Mrs. Rose Etsell, of which respondent testified:
"A. Yes, the first time she was there, she says this, `Mrs. Reed, we know he is awful hard to take care of,' and she says, — and she says `We will pay you,' and I said `Who do you mean by"we"?' And she said `George and I.' Q. Will pay? A. Yes. `George and I'."
Corroborating Mrs. Reed's testimony, a disinterested witness, who was working for Mrs. Reed as a nurse at the time the contract was made, testified as follows:
"Q. Did George Etsell or Rose Etsell or George's wife ever say anything about who was going to pay for the bill? A. Yes, they said they would pay well when it all was settled. Q. Who would pay well? A. Mrs. George Etsell, Mrs. Rosa Etsell, and I heard George and his wife say too they all pay well when they get settled up. Q. When they get settled up? A. Yes."
Her testimony was in no way changed or weakened on cross-examination, and she was the only disinterested witness on either side who testified as to what the contract was.
Such was the contract. Mrs. Reed, now understanding the really deplorable condition of Stine and making *Page 343 a contract to take care of him, wanted to know, of course, and therefore asked who was to pay her, and received the promise and answer that constituted the contract, the performance of which is the basis for this action. Further, the testimony, considered altogether, is clear that the Etsells were to have credit for all amounts Stine would pay. Other testimony of a similar kind need not be set out. The essential facts have been given.
The trial court found:
"(3) That during the month of August, 1929, the defendants then being interested in the welfare, custody and control of one Thomas F. Stine, and expecting either individually or collectively to become beneficiary interested under the last will and testament of one Thomas F. Stine, who at that time was an invalid suffering mentally and physically from divers, sundry mental and physical incurable infirmities, orally agreed with the plaintiff that the defendants would place the said Stine at the home of said plaintiff, and that plaintiff would care for the said Stine by nursing, boarding, and rooming the said Stine and looking after his physical wants, and that the said Stine would from his own funds pay a portion of what might be exacted by the plaintiff for the services to be rendered, as aforesaid and that when the services were completed the said defendants would pay to the said plaintiff the reasonable worth and value of the said services, she to give credit on account for such sums as the said Stine himself might pay on account thereof; that pursuant to said agreement the said Stine was brought to the residence of the plaintiff on the 23d day of August, 1929, and placed in the care and keeping of the plaintiff, and remained there with the said plaintiff, receiving care and attention as aforesaid, demanded and exacted until the 2nd day of December, 1930, when the said Stine died."
As is often the case, there was some conflict in the testimony, but, in my opinion, it clearly preponderates *Page 344 in favor of the finding of the trial court. It is a finding which appears to be most reasonable under the facts and circumstances, and is supported by a clear preponderance of the evidence. Such is my view of the testimony, considered as an original proposition, and certainly I am wholly unable to detect in the case anything of a substantial sort to turn aside the faith in, and credit to be given to, the findings of the trial judge, who saw and heard the witnesses, according to the necessary and almost universal rule of practice in this state. The holding and conclusion should be that the contract between Mrs. Reed and the Etsells was direct and primary, for which reasons it does not fall under the ban of Rem. Rev. Stat., § 5825 [P.C. § 7745], which provides, among other things, that "every special promise to answer for the debt, default or misdoings of another person" is void if not in writing or some memorandum signed by the party to be charged therewith.
In my opinion, the judgment entered in the case by the trial court should be affirmed.
MILLARD, C.J., HOLCOMB, and MAIN, JJ., concur with MITCHELL, J. *Page 345