Plaintiff presented the following claim against the estate of Lydia Elizabeth Smith, deceased:
"That on or about the month of July, 1919, the said Sidney R. Caswell was about to remove from
the city of Ludington to the city of Detroit, where he had an offer of employment at $3,000 per year with prospect of advancement, which said offer being communicated to the said deceased, she thereupon agreed to and with the said Sidney R. Caswell that if he would stay with his family in the city of Ludington and continue to render services to the said deceased as he and his family had theretofore done, that she, the said Lydia Elizabeth Smith, 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.
"That relying upon said agreement and assurance of the said Lydia Elizabeth Smith, this claimant did not remove to the city of Detroit, but stayed in the city of Ludington and retained his residence in close proximity to the home of the said Lydia Elizabeth Smith, and he and his family continued to furnish services, companionship, and comfort to the said Lydia Elizabeth Smith, during the entire remainder of her life, and that thereupon the said claimant became and was entitled to have the said contract so made between this claimant and the said deceased fully performed and became and was entitled by reason of his full performance of his contract to have awarded to him a sum of money sufficient that the interest thereon would amount to $3,000 per year, which sum would amount to and should be the sum of $60,000, which said sum this claimant by this says is due to him by reason of the services so performed by this claimant and his family in performance of the contract heretofore entered into between him and the said deceased."
Elizabeth Caswell, wife of the plaintiff, at the same time, presented her claim against the estate as follows:
"To services rendered by claimant to the deceased at her request continuously and daily throughout various hours of the night and day as
companion, maid, housekeeper, and general servant from January 1, 1912, to the time of the death of the above named Lydia Elizabeth Smith, deceased, on, towit, the 30th day of January, A.D. 1930.
"Said services consisted not only in acting as companion, nurse, and maid to the deceased, as aforesaid, but also in keeping in constant readiness at all times of the day and night to render service, of the character described, and other services, and being constantly at the call of said deceased at all times of the day and night assisting her with her housework, cleaning, doing her shopping, helping her in her preparation for parties, combing and dressing her hair, and bestowing upon her personal attention of all and every kind required by her, and in claimant keeping herself near to the telephone where she would quickly and promptly respond to every call made by deceased and by carrying out sundry and divers instructions of said deceased concerning arrangements to be made after the death of said deceased.
"937 weeks @ $18 (a week) per week ............ $16,866."
Upon appeal to the circuit court, plaintiff had verdict and judgment thereon for $60,000, and interest from the date of the death of Lydia Elizabeth Smith. Defendant estate prosecutes an appeal.
At the trial plaintiff called his wife to prove the contract. Objection was made on the ground that her testimony was excluded by the statute (3 Comp. Laws 1929, § 14219), because she was a party to the alleged contract in that her services were contracted for, and, therefore, an integral part thereof, and directed the attention of the court to the claim filed by plaintiff and also to the fact that the witness had filed her claim in the probate court for the same services which plaintiff sought to recover for in this case. Thereupon counsel for plaintiff urged that, when the case was here on appeal from summary
judgment (257 Mich. 461), the question was raised and:
"If the Supreme Court had considered there was any merit in this proposition, they know how to send a case back and fix it so you can't try it again; and they could have said that in any event, the claim of the defendant would be sustained so far as the testimoney of Elizabeth Caswell is concerned.
"They could have said, this case goes back for a new trial, and if her testimony was incompetent, they would have eliminated it in that decision. Why send it back when it is not the case. It was argued; it was in the brief; it was answered by our brief, and the court sends it back for a new trial without referring to that at all.
"Why, we would have to say that the Supreme Court were setting traps for somebody so as to reverse cases. Why send it back for a new trial and allow this testimony to stay in there, when the case would be reversed for allowing it to get in.
"I say that matter is res judicata in this case."
The court overruled the objection. Mrs. Caswell testified:
"Well, we were talking to each other over the telephone, and I told her we were going to move away; and Miss Smith came over, and she was all excited when she got to the house and she sat down a few minutes, and she said 'You cannot go; I want you here; I don't know how I can get along without you;' and Mr. Caswell came in and said 'Miss Smith, I have been offered a position in Detroit where I will get $3,000 a year; there is nothing in Ludington for me; and I have got to move in order to take care of my family,' and Miss Smith said 'If you will stay here, I will give you an amount that will bring you $3,000 a year in interest.'
"Q. What did Mr. Caswell say about that, when she told him that?
"A. Well, he stood there for a few minutes and he did not answer her right away, and he walked out in the other room, and in a short time he came back and said: 'Miss Smith, I will take you up on that, and if you should change your mind at any time, let me know.' "
The witness then detailed the services she rendered Miss Smith. Mr. Caswell was a commercial traveler, was away most of the time, rendered slight personal service, and his wife and children performed the services. Counsel for defendant offered the claim, filed by Elizabeth Caswell against the estate, for the purpose of showing the incompetency of the testimony of Mrs. Caswell. This was objected to, and in the discussion it was stated that, before the commissioners on claims, the following occurred:
"Mr. Keiser: I have already stated to the commissioners — I don't know whether it is in the record or not — I do not find it there — it is my position no one would ask for double compensation. We feel that this account is entitled to be allowed in full; and if so, I am satisfied Mrs. Caswell would not press her claim.
"Mr. Wetmore: My idea is this: That if through some technicality, Mr. Caswell should be held not able to recover anything, that then Mrs. Caswell might possibly recover onquantum meruit, but I will say that if the claim of Mr. Caswell is allowed, there is no question in my mind but what (that) merges into it, the claim of Mrs. Caswell. That has been my idea, and Mr. Keiser and I are in accord on that; that is, if there should be some insurmountable legal difficulty; but if the Caswell claim is allowed, I am satisfied it would bar Mrs. Caswell. Now that is my position."
And Mr. Wetmore, counsel for plaintiff, said:
"And that is my position right today."
Also —
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Plaintiff presented the following claim against the estate of Lydia Elizabeth Smith, deceased:
"That on or about the month of July, 1919, the said Sidney R. Caswell was about to remove from
the city of Ludington to the city of Detroit, where he had an offer of employment at $3,000 per year with prospect of advancement, which said offer being communicated to the said deceased, she thereupon agreed to and with the said Sidney R. Caswell that if he would stay with his family in the city of Ludington and continue to render services to the said deceased as he and his family had theretofore done, that she, the said Lydia Elizabeth Smith, 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.
"That relying upon said agreement and assurance of the said Lydia Elizabeth Smith, this claimant did not remove to the city of Detroit, but stayed in the city of Ludington and retained his residence in close proximity to the home of the said Lydia Elizabeth Smith, and he and his family continued to furnish services, companionship, and comfort to the said Lydia Elizabeth Smith, during the entire remainder of her life, and that thereupon the said claimant became and was entitled to have the said contract so made between this claimant and the said deceased fully performed and became and was entitled by reason of his full performance of his contract to have awarded to him a sum of money sufficient that the interest thereon would amount to $3,000 per year, which sum would amount to and should be the sum of $60,000, which said sum this claimant by this says is due to him by reason of the services so performed by this claimant and his family in performance of the contract heretofore entered into between him and the said deceased."
Elizabeth Caswell, wife of the plaintiff, at the same time, presented her claim against the estate as follows:
"To services rendered by claimant to the deceased at her request continuously and daily throughout various hours of the night and day as
companion, maid, housekeeper, and general servant from January 1, 1912, to the time of the death of the above named Lydia Elizabeth Smith, deceased, on, towit, the 30th day of January, A.D. 1930.
"Said services consisted not only in acting as companion, nurse, and maid to the deceased, as aforesaid, but also in keeping in constant readiness at all times of the day and night to render service, of the character described, and other services, and being constantly at the call of said deceased at all times of the day and night assisting her with her housework, cleaning, doing her shopping, helping her in her preparation for parties, combing and dressing her hair, and bestowing upon her personal attention of all and every kind required by her, and in claimant keeping herself near to the telephone where she would quickly and promptly respond to every call made by deceased and by carrying out sundry and divers instructions of said deceased concerning arrangements to be made after the death of said deceased.
"937 weeks @ $18 (a week) per week ............ $16,866."
Upon appeal to the circuit court, plaintiff had verdict and judgment thereon for $60,000, and interest from the date of the death of Lydia Elizabeth Smith. Defendant estate prosecutes an appeal.
At the trial plaintiff called his wife to prove the contract. Objection was made on the ground that her testimony was excluded by the statute (3 Comp. Laws 1929, § 14219), because she was a party to the alleged contract in that her services were contracted for, and, therefore, an integral part thereof, and directed the attention of the court to the claim filed by plaintiff and also to the fact that the witness had filed her claim in the probate court for the same services which plaintiff sought to recover for in this case. Thereupon counsel for plaintiff urged that, when the case was here on appeal from summary
judgment (257 Mich. 461), the question was raised and:
"If the Supreme Court had considered there was any merit in this proposition, they know how to send a case back and fix it so you can't try it again; and they could have said that in any event, the claim of the defendant would be sustained so far as the testimoney of Elizabeth Caswell is concerned.
"They could have said, this case goes back for a new trial, and if her testimony was incompetent, they would have eliminated it in that decision. Why send it back when it is not the case. It was argued; it was in the brief; it was answered by our brief, and the court sends it back for a new trial without referring to that at all.
"Why, we would have to say that the Supreme Court were setting traps for somebody so as to reverse cases. Why send it back for a new trial and allow this testimony to stay in there, when the case would be reversed for allowing it to get in.
"I say that matter is res judicata in this case."
The court overruled the objection. Mrs. Caswell testified:
"Well, we were talking to each other over the telephone, and I told her we were going to move away; and Miss Smith came over, and she was all excited when she got to the house and she sat down a few minutes, and she said 'You cannot go; I want you here; I don't know how I can get along without you;' and Mr. Caswell came in and said 'Miss Smith, I have been offered a position in Detroit where I will get $3,000 a year; there is nothing in Ludington for me; and I have got to move in order to take care of my family,' and Miss Smith said 'If you will stay here, I will give you an amount that will bring you $3,000 a year in interest.'
"Q. What did Mr. Caswell say about that, when she told him that?
"A. Well, he stood there for a few minutes and he did not answer her right away, and he walked out in the other room, and in a short time he came back and said: 'Miss Smith, I will take you up on that, and if you should change your mind at any time, let me know.' "
The witness then detailed the services she rendered Miss Smith. Mr. Caswell was a commercial traveler, was away most of the time, rendered slight personal service, and his wife and children performed the services. Counsel for defendant offered the claim, filed by Elizabeth Caswell against the estate, for the purpose of showing the incompetency of the testimony of Mrs. Caswell. This was objected to, and in the discussion it was stated that, before the commissioners on claims, the following occurred:
"Mr. Keiser: I have already stated to the commissioners — I don't know whether it is in the record or not — I do not find it there — it is my position no one would ask for double compensation. We feel that this account is entitled to be allowed in full; and if so, I am satisfied Mrs. Caswell would not press her claim.
"Mr. Wetmore: My idea is this: That if through some technicality, Mr. Caswell should be held not able to recover anything, that then Mrs. Caswell might possibly recover onquantum meruit, but I will say that if the claim of Mr. Caswell is allowed, there is no question in my mind but what (that) merges into it, the claim of Mrs. Caswell. That has been my idea, and Mr. Keiser and I are in accord on that; that is, if there should be some insurmountable legal difficulty; but if the Caswell claim is allowed, I am satisfied it would bar Mrs. Caswell. Now that is my position."
And Mr. Wetmore, counsel for plaintiff, said:
"And that is my position right today."
Also —
"But we are not pressing Mrs. Caswell's claim here. Let's take it that way. Let's say this claim was allowed. Two claims for the same services can be filed; and you cannot void one by the other, by any means, and void both of them; and that is what they are attempting to say and do, if they cause Mrs. Caswell's claim, to void the Sidney Caswell contract. * * *
"If this were for services outside the contract with Sidney Caswell and Miss Smith, then she would be entitled to recover for them, but I think I have barred Mrs. Caswell of ever prosecuting her claim by the statement made here in probate court, except this, — just as I stated there, we made the reservation, if there should be some insurmountable obstacle come in here that prevented Mr. Caswell from recovering, then Mrs. Caswell might recover what her services were reasonably worth.
"The Court: In other words, if you fail to establish — your position is — if you fail to establish the contract upon which you rely, then the services rendered by Mrs. Caswell — then the services rendered might be a subject of quantum meruit?
"Mr. Wetmore: If Mrs. Caswell had; not Sidney Caswell, because he has exhausted his remedy here in this case. Any judgment here would be res judicata against Sidney Caswell.
"The Court: He has elected his remedy?
"Mr. Wetmore: Yes, and it is irrevocably set.
"The Court: Then her claim would be limited to whatever was not within the scope of the agreement he made?
"Mr. Wetmore: I think we went further than that. I went further than that, because I say here, and my idea is this: This would not bind Mrs. Caswell; there is no question about that. If I have gone
too far and possibly said too much, I would be faced with it if Mrs. Caswell ever attempted to file a claim here.
"The Court: Do you think you could bind her?
"Mr. Wetmore: Yes; because she had a case and I was her attorney in this same matter. * * *
"Mrs. Caswell has been a witness here, and testified to the services right here in open court and makes no claim outside of this what I am now stating; there would be an estoppel grow up on the part of Mrs. Caswell at least. She comes in here as a witness; she is the wife of the plaintiff in this case, and there can be no question but what the rule of estoppel would come in here. Mrs. Caswell is absolutely estopped, if Sidney Caswell is paid for the services which he claims were rendered by himself and family there, and she has testified to them. She makes no claim here in court, for she was on the witness stand to say that she was willing to abide by the statement of her counsel; I say — if she did that, it would make no difference anyway. That is a matter that you will determine later. It is not a split-up and indivisible cause of action; it is not that at all. * * *
"It strikes me that the court will not pass upon the Elizabeth Caswell case at this time.
"The Court: Let me see the claim."
The court refused to receive the evidence for the purpose of affecting the competency of the witness. Thereupon counsel for the estate made a record for the purpose of review. Was the testimony of Mrs. Caswell barred by the statute, 3 Comp. Laws 1929, § 14219? That statute bars the testimony of an opposite party on matters equally within the knowledge of a deceased person.
"It is well settled in this State that the opposite party does not necessarily mean a party to the record; but it means any person whose interests are,
as matter of fact, antagonistic to the interests of those for whose benefit the statute was passed." Cutter v. Powers,200 Mich. 375, 386.
The bar may be made to appear by extrinsic evidence.
Justice COOLEY in Bachelder v. Brown, 47 Mich. 366, said:
"It has been held under statutes similar to this in their general purpose, that the substantial party is within the intent."
As stated in 40 Cyc. p. 2272:
"It is sufficient to exclude a party that he is actually adverse in interest to the representative, etc., of a decedent, although he may not be adverse to such representative upon the record."
A witness may be an opposite party in interest although not an opposite party of record in the suit.
The mutual interests of this husband and wife arise from one and the same alleged contract, and, while ostensibly divided for the purpose of suits, the mutuality is emphatically evidenced by the statements of their counsel that, if plaintiff herein is successful, the wife will be estopped from pressing her claim. This witness was so much a party in interest in establishing plaintiff's claim that her counsel, in an effort to remove her disqualification, stated that, if plaintiff was successful, her claim against the estate would be waived. This necessarily implied merger or estoppel on the ground that she was a party in interest. It is evident that the claim filed by Mrs. Caswell was an anchor to windward, to be hoisted aboard the family craft if her testimony held the ship off the bar, otherwise suit-wreck would be considered single and the wife's craft would appear in the offing.
It seems to me that Mrs. Caswell's claim, if any, has become so merged in that of her husband, if he recovers, that she is a party in interest and cannot testify to matters equally within the knowledge of deceased.
Her services were cast into the consideration for the promised gift and she will share in the fruit of their joint endeavors. A witness in interest cannot have disqualification removed by a statement of counsel that, in case her husband has recovery, no claim will be made in behalf of the witness. The testimony of Mrs. Caswell should have been excluded.
When the case was here before (257 Mich. 461), we were not called upon to, nor did we, pass upon the competency of the testimony of Mrs. Caswell. The question there determined was the right of the court to enter a summary judgment upon the claim against the estate.
The judgment is reversed, and a new trial granted, with costs to defendant.
SHARPE, and BUTZEL, JJ., concurred with WIEST, J.