Hurst's Adm'r v. Hite

20 W. Va. 183, 1882 W. Va. LEXIS 37

• Court: West Virginia Supreme Court
• Decided: August 25, 1882
• Status: Published

Opinion

Haymond, June®,

announced the opinion of the Court:

It now appears, that no paid of the depositions taken by the defendant to prove the items of his account No. 1, filed with his answer as an exhibit, was copied into the record of this ease by the clerk of the court below except so much thereof, as bears upon the items of the defendant’s account No. 2, filed with his answer as an exhibit; that much of the evidence, upon which the commissioner acted in allowing the defendant, Hite, the credits he did in his report, was not copied into the record before us by the said clerk *by direction of counsel, but it seems, that all the papers in the cause and depositions, which were before the commissioner, and upon which he acted in making up each of his reports, wore among the papers of the cause and before the circuit court, when it heard the cause and overruled the exceptions of both parties filed to the commissioner’s second report anci confirmed said report and decreed thereon against the defendant, on the 15th day of April, 1875. It now appears, that since the record before us was made by said clerk, upon which to found the application for this appeal and supersedeas (which was granted), and since said appeal and supersedeas were allowed, all the original papers of this cause on file in the circuit court have been lost or mislaid and cannot be found, and in consequence thereof copies of none of the depositions or papers in the cause, which were not copied into the record by the clerk as aforesaid, can now be had or procured; but it appears, that the depositions and papers not copied into the record before us, and which were before the commissioner, and on which he based his second report, in so far as he allowed credits to the defendant as shown by that report, proved those credits; but it docs not appear, whether the evidence before the commissionér proved, that they were properly payments or offsets against plaintiff’s claim. I am inclined to the opinion however from the defendant’s answer and the manner, in which he filed his accounts, in connection with depositions in the cause, that all of them or nearly all were properly offsets and not payments so far as they were properly allowed as offsets against the three bonds in the bill mentioned. It is evident from the manner, in which the commissioner treated them, that he regarded them in the calculation of interest thereon as offsets and not payments. The rule is, that when payments are made from time to time on a debt bearing interest, the interest is to be computed on the debt up to the time of payment, and the payment is to be deducted from the amount, principal and interest. It is error to compute interest on payments to a future day, when the debt is paid or settlement made, and then credit the payment and interest thereon upon the debt, principal and interest. Fultz v. Davis, 26 Gratt. 903. It is error in a commissioner to allow interest on part payments of a judgment; the proper rule is to bring the interest on the principal sum up to the date of each qiayment, and in case the interest exceeds the payment deduct it from the amount of that payment, thus malting partial payments first applicable to the interest. De Ende, &c., v. Wilkinson’s administrator; Same, v. Tait, 2 Pat. & H. 663.

In the case of Lightfoot v. Price, 471. & M. 431, 432, the chancellor said: “I concur in the opinion given by the late judge of this court in the case of Ross v. Pleasants, Shen § Co. and William Anderson, that so much of any payment, as is equal or exceeds the interest, is to be applied to the discharge thereof, and the residue towards discharging the principal, unless the debtor at the time of the payment or before directed otherwise; that is to say, from the sum of principal and interest, computing the latter to the time of payment is to be deducted the payment and tlie.-balaiice forms a now capital; on that interest is to be computed from that time, but with the caution, that the new capital be not more than the former, so that, if the payment be less than the interest due at the time, the surplus of interest must not alignment the remaining capital, because this would give interest upon interest, which would be unlawful.” The rule as to offsets I apprehend is different; and it was not error to calculate interest upon offsets, as vais done by the commissioner in this case.

In this ease the statute of limitations did not cease to run against each of the defendant’s offsets respectively, until the time of defendant’s answer and accounts of offset were filed in the cause. Code of W. Va., chapter 126 section 9; Kelly’s Revised Statutes, chapter 154 section 9 and note thereto; Moore v. Luckess’ next of kin, 23 Gratt. 166, 167. Sometimes, what might appear at first view to be an offset, may properly be treated as a payment on a bond, when it appears, that it was agreed by the parties, that it should he a payment. 5 Gratt. 475. See on this subject further, Angel on Limitations (4th edition) § 75, note 2; King v. King 1 Stockt. (H J.) 44. It appears in this case, that about the 1st of January, 1856, the defendant executed lhs bond to said Hannah Hurst for five hundred dollars borrowed money, and this bond together with the three bonds of the defendant to Ferguson in the bill mentioned were in the possession of the said Hannah Hurst at her death, and after her death the plaintiff found them all among the papers of the said Hannah. The plaintiff brought an action at law against the defendant to recover the amount of the said bond for five hundred dollars from the defendant, which the defendant executed to said Hannah Hurst with its interest; and this action at law, I infer from what appears in this case, is still pending. The defendant, in order to prove his accounts filed in this cause, took the deposition of J ames V. Moore who deposes as follows :

“Question by defendant’s attorney- — Do you know of any sendees rendered by Col. Thomas Hite for Miss Hannah Hurst as her agent or otherwise ? If so state it.

“Answer — I frequently have been there and seen Col. Hite’s hands helping her to harvest, thrash and seeding, &c., during busy times; and in the fall of 185 9 I was over at Hite’s house after some seed-wheat; aunt ■ Hannah Hurst’s two wagons were there loading wheat, and I called at her house in company with Col. Hite that evening after coming from his house; and he paid her two hundred dollars in money, and she told the Col. to charge her with the seed-wheat.

“Question by same — State all that took place on the evening, to which you refer in your last answer, between the parties.

“Answer — After the Col. had paid her the two hundred dollars, he remarked to her, that he ought to have that note of liis given to her for five hundred dollars, as he knew it was paid. She remarked, that she knew that note was paid; and the Col. remarked about the two notes of Ferguson’s, that-she claimed as her own notes, that she ought to give up those notes too, or gross receipts, as he wanted to settle up Ferguson’s estate; she told him to charge up those two notes as they were hers, and when it was convenient she would give them up. It was late in the evening. She also said, that any other notes or accounts he had against her he should charge up against her, as she wanted him paid. That is all that took place that night. The Col. remarked that if she wanted any more money she could have it at any time.

Question by same — Was there anything said in this conversation about the amount of the two notes of Ferguson ? If so, what? And did you understand what Ferguson it was that these two notes were given to ?

“Answer — The notes given to Wm. G-. Ferguson; I think the notes were for five hundred dollars each.”

Question by same — Hid you ever hear your aunt, Hannah Hurst, say anything at any other time about her affairs with Col. Thomas Hite ? If so, state what and where.

“Answer — On the same night we were there, the Col. remarked to her something about these notes 'or Ferguson’s business; and she remarked to him, that it was all hers; and the Col. told her that night the impropriety of holding these notes; if anything should happen he might he put to trouble. She told him it was her business, and that she wanted him to go on and attend to her business, as he had been attending to it, and that she wanted him paid for all the trouble he had for attending to her business. The Col. made some remark, but don’t recollect what remark it was, as I was off a good ways. She told him, that none of her relations would attend to it, and that she wanted him to continue as he had heretofore. I was there frequently after that; and her remarks were pretty generally the same, that none of her relations would attend to it. I told her, that I thought she was a little hard on her relations.”

Question by same — Do you know what quantity of seed-wheat Col. ITite let Miss Hannah Ilurst have at the time, to which you have heretofore referred ?

“Answer — I cannot say how much there was. She had two wagons there and they were pretty full. I judge there was 125 or 130 bushels — may be more — and I knew that she spoke that night of sending up for more — enough to sow another field that the Col. advised her that night to put in. 1 think I gave one dollar and fifteen cents a bushel for it that year.”

Question by same — I)o you know whether your aunt, Hannah TIurst, got the other seed wheat that fall of Col. Thomas Hite to seed the field, of which they spoke ?

“Answer — I cannot answer that positively. I knew the field was sowed, and she told him she was going to send for the wheat. It would have taken about thirty bushels to seed that field.”

Question by same — State how long before the death of Miss Hannah Ilurst had you seen Col. Hite’s hands at your aunt Hannah Hurst’s harvesting, threshing, seeding, &e., during busy times, and for what length of time did Col. Thomas Hite so help her ?

“Answer — Dor off and on for the last eight or ton years before her death. She died, I think, in the fall of 1862.”

Question by same — During the period referred to in your last answer have you any knowledge of Col. Thomas Ilite’s horses being employed at any time in the service of your aunt, Hannah Iiurst ? If so, state what knowledge you have on this subject.

“Answer — His horses were down helping her thresh wheat, delivering her wheat, and seeding, and I think I have seen them there once or twice helping to haul in hut I won’t be positive about that. Every year I saw them down there for the last six or eight years before her death, and they were there more at the latter part of the time than the first part.”

Question by same — Ho you know of any service rendered by Gol. Thos. Hite for your aunt, Hannah Hurst, in attending to her business; and if so, what do you know on this subject?

“Answer — ITe attended to her business after the death of Wm. 6. 'Ferguson up to her death. Wm. Gr. Ferguson died either in the fall of 1854 or in the spring of 1855. I think it was in the spring of 1855.

From the evidence of said Moore in connection with other facts it seems to me, that it may be properly considered under his answers to the first two questions, that the two hundred dollars, paid by defendant to said Hannah by said Hite was paid by him on the bond for five hundred dollars, which he had executed to her, for which the action at law is pending; and that it was considered by tlie’parties at the time, that the wheat of which said Moore speaks together with the other items charged in the defendant’s said account exhibit Ho. 1 filed by him with his answer preceding the charge of two hundred dollars cash, the ninth item in said account commencing with the charge of forty-seven dollars and thirty-five cents, paid the said bond for five hundred dollars executed to said Hannah. It may be seen by reference to said account, that the first nine items thereof in the aggregate amount to the sum of five hundred and forty-six dollars and twenty-four cents which is in the neighborhood of the amount of said bond at the date of said charge of two hundred dollars, which is the 26th day of October, 1859. Moore in the last part of his first answer says: “He (Hite) paid her (Hannah) two hundred dollars in money, and she told the Colonel to charge her with the seed-wheat.” In his second answer he says: “After the Colonel had paid her the two hundred dollars he remarked to her that lie ought to have that note of his given to her for five hundred dollars as lie knew it was paid and she remarked that she know that note was paid.” Heithor party stated how it was paid; hut I think it may be reasonably inferred, that the parties considered it was paid by the said cash payment of two hundred dollars, and the other items ol said accaunt preceding that item. If the said two hundred dollars cash payment was not paid on said bond for five hundred dollars, on what was it paid? And if the said bond for five hundred dollars was paid, how was it paid, if not as I have supposed ? After the defendant paid her the two hundred dollars, he said to her, that he ought to have the “note” of his given to her for five hundred dollars, -as he knew it was paid, and she said she knew it was paid. Hothing was said about said two hundred dollars being paid on any other note or bond. It is true, that it is claimed, that the defendant had previously paid the said bond for five hundred dollars in services rendered as charged in said account, exhibit Ho. 2, filed with his answer; but the defendant lias not in his account or otherwise treated that account or any part of it as a payment of said bond for five hundred dollars. I will speak more of that account hereafter in the appropriate place. *

Considering the said first nine items oí defendant’s said account Ho. 1 as being proven before the commissioner as correct charges against the estate of said Hannah deceased I do not consider, that they áre or should be applied as payments on or offsets against any of the said three bonds given by the defendant to said Win. G. Ferguson, because it seems to me, that said Hannah and said Hite in the fall of 1859, appropriated them to the said bond for five hundred dollars given by said Hite to said Hannah in payment thereof, and that said Hannah at that time acknowledged, that said last uamed five hundred dollars bond was paid or thereabouts by said nine items considering them about equal in amount to said bond for five hundred dollars to her, at that time. If these said nine items are allowed to the defendant in this suit as payments or offsets against the bonds executed by the defendant to said W. G. Ferguson in the bill mentioned, the effect would be to appropriate these items differently, as I think, from what the said Hannah and defendant appropriated them; and theresultwouldbe,thatthe defendant by reason’ of the acknowledgment of the said Hannah, that said bond for five hundred dollars given to her by defendant had been paid, would defeat the plaintiff’s action at law upon said last named bond, and thereby in effect obtain and realize credit- twice for said nine items, which would be unjust.

It is true, that witness Moore says, in substance, that when said Hannah remarked, that she knew the defendant’s note for five hundred dollars executed to her was paid, the defendant remarked to said Hannah about the two notes of "Ferguson, which she claims as her own notes; that she ought to give up those two notes or a gross receipt, as he wanted to settle up Ferguson’s estate, and she told him to charge up these notes, as they were hers, and when it was convenient she would give them up. It must- be remembered, that the • defendant in his answer admits in effect, that said Hannah was in fact at least the rightful equitable owner of said two bonds for five-hundred dollars each given by defendant to said Ferguson at the time, when they were executed; that the consideration, for which they were given, was her property; and that they were executed to said Ferguson, only because he was her agent and so acting and frequently transacted her business in that way. The bond for one thousand dollars the defendant in his answer says, was given to said Ferguson for money received of him. The defendant in his answer further says: “He denies, that he ever delivered to Miss Hannah Hurst the bonds named in the bill executed by respondent to "Win. G. Ferguson in satisfaction pro tanto of her legacy or in any other way. On the contrary, none of said bonds ever came into the possession of your respondent at the death of said Wm. G. Ferguson or immediately thereafter. They were in the possession of ITanuah Hurst, who claimed, that all three of them properly belonged to her and ought to have been executed to her, and she refused to give them up to your respondent as administrator of Wm. G. Ferguson deceased. Your respondent was himself aware, that her claim, so far as the two bonds for five hundred dollars went, was well founded.”

With the aid of these admissions of the defendant the substantial meaning of the said conversation deposed to by said Moore as to the said two bonds for five hundred dollars, I think, may be ascertained. Moore does not say, that the defendant in said conversation claimed or said, that these two bonds for five hundred dollars each had been paid to said Hannah or had been satisfied; nor does he say, that said Hannah acknowledged, that they had been ■paid or satisfied. The defendant claimed according to his answer, that as administrator he ivas entitled to all three of the bonds executed by defendant to said Iferguson; but the said Hannah refused to give them up to him. T infer from all this and from other parts of said Moore’s deposition, so far as above quoted by me, that when the defendant remarked about the said two bonds for five hundred dollars each as stated by said Moore and said Hannah replied to him, charge up these two “ notes ” (meaning bonds) as they were hers, and when it was convenient she would deliver said two bonds to defendant for tire purpose of enabling him to account or settle for the same as administrator as aforesaid, that difficulty might be avoided, and not because they had been paid. If defendant considered, that said two bonds for five hundred dollars were paid at the time of said conversation, he would most probably have so said, as he did as to the bond for five hundred dollars he made to said Hannah.

It seems that between the 15th day of -July, 1855, and the time of the said conversation the defendant had paid out of his own funds several hundred dollars in settlement of the debts and liabilities of the estate of said Ferguson, deceased, and as he had delivered to said Hannah the personal property of said Ferguson received by defendant as administrator as aforesaid, he was entitled to be reimbursed by said ITannali for the money so paid out of said bond for one thousand dol-thousand dollars or otherwise; and the defendant at the close of his said answer says: “ Your respondent is willing and desirous of settling his account as administrator with the will annexed of ’Wm. G-. Ferguson, deceased, and after there shall have been allowed him as a credit on said bond, for one thousand dollars, the amount due him on such settlement, he is willing to pay the balance, if anything, which may be due on said bonds. The amount paid by defendant out of his own funds in settlement of the debts and liabilities of the estate of said Ferguson, deceased, and' in fact the full amount claimed by him to be due him from the estate of said Ferguson was allowed him by the commissioner in each of his reports; and he had and received the full benefit thereof in said report without exception or objection.

This action was pending on the 1st day of April, 1869, when the Code of this State of 1868 took effect; and in computing the time the statute of limitations runs against said nine items or any of them treating them as offsets in this suit the time between the 17th day of April, 1861, and the first day of March, 1865, that is three years, ten months and fourteen days must be counted out, which operates in effect an extension of the statute of limitations of five years to the period of eight years, ten months and fourteen days; and applying the statute of limitations thus extended to these nine items as charged in said account Ho. 1 several of said items, as charged in said account, were barred at the time defendant filed his answer and accounts of offset; and the part of said items so barred should have been excluded from his said second report for that cause, if no other, so far as I can now sec. I therefore am of opinion, that the circuit court erred in confirming the said second report of said Commissioner Moore, in so far as he allowed the defendant credit for said first nine items in defendant’s said account Ho. 1 and interest on said credits in his said second report as against the three bonds or any of the three bonds of the defendant, in the bills mentioned.

The said nine items and interest as allowed the defendant, in his said second report are as follows, viz :

1858, March 28 — By amount of balance account rendered .§ 47 35

Interest to October 1, 1874.1. 46 62

April 30 — By amount paid McIntyre (clover seed). 30 00

Interest to October 1, 1874. 29 55

April 30 — By amount paid J. P. Brown, insurance. 29 34

Interest to October i, 1874....,. 28 88

1859 — By amount of Smith’s account. 6 60

Interest to October 1, 1874 . 6 14

April 30 — By amount paid J. P. Brown, insurance. 29 34

Interest to October, 1874. 27 13

1859, May 3 — By mares to horse. 18 00

Interest to October 1, 1874. 16 68

October 1 — 161 bushels wheat. 184 11

Interest to October 1, 1874 . 165 60

26 — By amount Sudclith’s bill. 1 50

Interest to October 1, 1874. 1 33

By cash. 200 00

Interest to October 1, 1874. 179 14

These items the circuit court should have disallowed as being credits or offsets in this case as against the said three bonds of the defendant in the bill mentioned, although they are applicable as aforesaid to the said bond of live hundred dollars of the defendant to the said Hannah, upon which said action at law is pending by the plaintiff’ against the defendant, they having been appropriated to said last named bond by the said Hannah and the defendant during the life of the said Hannah. The commissioner’s said second report as to all other items of credit, which it allows the defendant, is correct, including the items of credit, which he allows the defendant upon his account against the estate of W. Gt. Ferguson.

I now proceed to consider the exceptions of the defendant to the commissioner’s said second report for rejecting the defendant’s said account No. 2 against the estate of said Hannah Hurst, deceased. It is argued and claimed by the counsel for the appellee, that the commissioner and the circuit court did not err in this respect, because first, the services charged in that account so far as proved were rendered as a gratuity;, and second, because the charges for services contained in said account are excessive and arc not justified by the evidence; and third, because a large part of the account was barred by the statute' of limitation, extended as aforesaid at the commencement of this suit.

It appears, that the said ¥m. (I. Ferguson died at Miss Hurst’s house sometime in the early part of the year 1855, and shortly prior to the commencement of said account. Joshua Ferguson in his deposition taken by the plaintiff, testifies in substance, that he had had frequent conversations with the defendant respecting the business of said Hannah Hurst; that defendant said he had done and would continue to do all he could for her as a friend; and that from the friendship and intimacy, which had existed between him and the Hurst family for many years, he could not do too much for them. He said, that what he had done for said Hannah Hurst, he did gratis and as a’ friend. He also spoke of tliev' intimacy, which existed between him andWm. G. Ferguson.' deceased, who had lived-with Hannah Hurst for many years' previous to his death, and who died at her house; that hd1 also told witness, that he premised" Wm.- G. Ferguson1 on his' death-bed, that his aunt Hannah Hurst should never want'' for anything, while he, Hite, lived, and-that he would he lief" friend; that witness from said conversation distinctly'" understood him to say, that he never intended t<F charge Hannah Hurst 'anything for any services, which he had rendered her, or might render during her life; that after the death of Wm. G. Ferguson Hannah Hurst gave Thomas Hite a horse and buggy and a gold watch, which he at first refused to take, and which she afterwards sent to him to his house, and which he kept; that he, Hite, told witness, that he at first refused to take said articles, for the reason that he did not intend to charge her for anything he had done for her; that those conversations between witness and defendant occurred in 1858, after the death of Wm. G. Ferguson, and during the life of Hannah Hurst; that defendant also told witness, that Hannah Hurst had frequently applied to him to write her will, which he declined doing, for the reason that he believed she intended or wanted to give him a portion of her estate; that he did not want any of it, and she had relatives, who needed her property much more than he did; that he also said the family of Hannah Hurst, including her father and her nephew, Wm. G. Ferguson, had always been his friends, and that he never intended to charge her for anything he had done for her; that he also spoke of exchanging labor with Hannah Hurst frequently, and said that he had furnished her more labor than she had him, and that he had more hands than she had.

Lucy S. Wysoug, another witness, for the plaintiff in her deposition testifies, that in September, after the close of the war, the defendant spent the day at her house; and that at that time he spoke of Hannah Hurst’s death and will; and he said the many little favors he had conferred on her were in gratitude for the many favors conferred on him by her father, which had made him what he was; and then said he did not claim any other compensation for what ho had done for her. But the defendant in his deposition testifies, that he never made any such statement to Mrs. 'VVysong or in her presence. The defendant however in his deposition does not admit or deny the statements of the defendant, testified to by said Joshua Ferguson as given above. In fact the defendant in his depositions does not in any way refer to the testimony of said Joshua Ferguson.

It appeal's that on the twenty-eighth or thirty-first day of March, 1858, the said Hannah Hurst and defendant, had a settlement of accounts and at that time there was duo on the accounts settled forty-seven dollars and thirty-five cents, which is the first item charged in defendant’s account Ho. 1. It does not distinctly appear whether this was intended by the parties as a settlement of all their open accounts up to that day or not, but I think it does appear that the defendant’s present claim for services was not included in. the settlement or mentioned therein as a claim, but it does appear that said settlement embraced nothing but simple accounts. The defendant’s account Ho. 2 for services commences in May 1856 and up to May 1858 he has charged in said account seven hundred and fifty dollars.

In Chitty on Contracts (6th Am. ed.) 542 it is said that “where it is expressly agreed between the parties that the work shall be' gratuitously done, the contract is nudum factum and the party undertaking to execute the work is not bound to enter upon and perform it; though he becomes liable, if having actually proceeded on the employment, he bo guilty of any misfeasance in the course thereof, to the injury of the other.” Mr. Chitty at same page and page 542, says: “An action can not be maintained for services performed with a view to a legacy, and not in expectation of a reward in the nature of a debt. And if a father-in-law educate and maintain his infant son-in-law obviously from mere kindness by way of gratuity he can not support a claim to remuneration when the child obtains his full age.”

In the case of Newell v. Keith 11 Vt. it was held, according to Mr. Chitty 542 that, “if personal services be rendered by one person for another, at the request of the latter, an action will lie for them, unless it appears from the whole evidence tliat tlioy were designed to be gratitious, and this is matter of fact to be found by the jury.” The 11th Vermont is not in tiie library at this place and I therefore can not now see it.

In the ease of Harshberger’s adm’r et als., v. Alger and wife et als., 31 Gratt. 52, it was held according to the syllabus, as follows: “7. In this case there having been no express contract found, and so far as appears, no claim or mention of such compensation by either the mother or daughter during the mother’s life, and the services having been such as any child, prompted by filial affection and impelled by a sense of duty, might be expected, under the circumstances, to render cheerfully to an aged mother, a contract can not be implied; and A can not recover.”

In the case of Armstrong’s heirs v. Walkup et als., 9 Gratt. 372, it was held: “A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and in fact kept no account against them.” Judge Samuels in delivering the opinion of the court at pp. 375-6 says: “There is proof in the record tending to show that Armstrong did so promise; yet as he was under no previous obligation to support and educate them at his own expense, a promise to do so was made without consideration, and would not be binding upon him. The office he held made it his duty to take care of the persons and property of his wards, and to provide for their support and education out of the profits of their est'ate. A mere promise to persons having no authority to contract on the subject, and for no consideration, does not affect the rights of the guardian to have compensation. Hooper v. Royster, 1 Munf. 119.”

In the case of Rea’s adm’r v. Trotter Bro., 26 Gratt. 585, the third section of the syllabus is as follows: “T. stores goods with R.; and nothing is said as to tlfe compensation, which 11. is to receive for their storage. The law implies a contract that It. shall be paid a reasonable compensation therefor, unless there be something in the relation of the parties or the circumstances of the case which precludes the idea of such compensation, in which case there would be an implied agreement or understandinding that no such compensation was to be paid.” In this case Judge Moncure in delivering the opinion of tlic court at page 592 says: “Where service is performed by one at the instance and request of another and especially where that other is personally benefited by the service, the law implies a contract, that tlic party who performs the service shall bo paid a reasonable compensation therefor, .unless there be something in the relation of the parties or the circumstances of the case which precludes the idea of such compensation; in which case there would be an implied agreement or understanding that no such compensation was to be paid. This is an undeniable principle of law, which applies to almost every case of assumpsit on a quantum meruit.”

I think Judge Moncure states the law correctly. It appears that Hannah Hurst died in September, 1862. The defendant is not a competent witness to testify in this case, as it stands, in his own behalf as-to any transaction or communication had personally with the plaintiff’s intestate. Code of 1868 chap. 130, sec. 23, paragraph II. Hoither is he competent under said twenty-third section to testify in his own behali as to his work and labor or services rendered for Hannah Hurst, deceased, or what things he did in and about, the services he claims in his said accounts to have performed for the said Hannah Hurst in her lifetime, or to testify, as to any contract or agreement made by him with said decedent in relation to said services or the value thereof, or as to payment therefor or how it was to be paid, or in relation to the bonds in the bill mentioned, or as to any matter or thing relating thereto or material to the cause, or as to any conversation or contracts had or made by him personally with said Hannah Hurst deceased. Owens v. Owen’s administrator, 14 W. Va. 88; Calwell v. Prindle’s adm’r. et al., 11 W. Va. 307; French v. French 14 W. Va. 458.

Under the said twenty-third section of said chapter 130 and the principles decided in said cases, as this case is presented, the most material parts of defendant’s deposition filed in this cause must be excluded, and cannot be read as evidence; but that part of the same, in which he contradicts the statements, of Mrs. AYysong in relation to a conversation of the defendant had with her or in her presence, is proper to be read. But after excluding the parts of the. defendant’s deposition. as to all matters, as to which, he is incompetent to testify, there is still evidence proving, that the defendant did render sendees for said Hannah Hurst from the spring of 1855 up to ancl including a part of the year 1862; hut the evidence as to the quantity' and value of such services is not specific, but is general in its character. Still, I think, it is sufficient to establish, that the defendant, did render the said Hannah service as stated in his said account Ho. 2, and that the charges therefore are in part at least correct. I think from the evidence and circumstances appearing in the case, that many if not all the services rendered by the plaintiff for the decedent prior to the year 1859 were rendered as merely friendly acts gratuitously by the defendant, and that it was so understood by the parties, when and as they were rendered. It is true, that sometime after the death of said ¥m. G-. Ferguson and after the date, at which defendant’s said account Ho. 2 commences, the said Hannah made the defendant a present of a horse and buggy and a gold watch, which the defendant accepted after first declining them upon the ground that he had no chai’ges against said Hannah for any services he had rendered her, because they were rendered as acts of friendship, &c. Upon the horse and buggy and gold watch being sent to him at his house by the said Hannah as a present he did ultimately receive and accept them and appropriate them to his own use. Besides all this under the statute of limitations all the items of the defendant’s said account prior to the 2d day of June, 1859, were barred by the statute of limitations at the time, when defendant’s answer and accounts of setoff were filed in this cause, after counting out the three years, ten months and fourteen' days aforesaid, and ought not for that reason to be allowed the defendant as credits or offsets in this case. But the evidence of James Y. Moore above stated proves, that in the fall of 1859 the said Hannah requested the defendant to continue to attend to her business for her, and in effect promised, that he should be paid therefor. This being so, the defendant is I think, entitled to have allowed him as equitable offsets at least in this case as against the three bonds in the bill mentioned the following items of the said account H. 2, which were rejected by the commissioner and the circuit court, viz:

May, 1860 — For services, &c., from May, 1859, to May, 1800.8250 00

May, 1861 — For services from May, 1860, to May, 1861. 250 00

May, 1862 — For services from May, 1861, to May, 1862 250 00

And I think the commissioner and the circuit court erred in refusing to allow the defendant the said last named items of his said account No. 2 as offsets to said three bonds in the hill mentioned; hut I do not think, that the commissioner or the circuit court erred in rejecting the other items of defendant’s said account No. 2, filed with his answer in this cause. The last item of the defendant’s said account No. 2, which is one hundred dollars; is disallowed upon the evidence of Edward E. Spaw chiefly.

I have now considered all the questions in this case, which I deem material or necessary. By reason of the defective condition of the record owing to causes, which I have here-inbefore referred to, I have had great difficulty, and have been compelled to spend much time in arriving at a satisfactory conclusion in this case. It is not improbable, that the conclusions, to which I have arrived, will not do exact justice between the parties; but, I think, they approximate it as nearly as may be under the circumstances.

For the foregoing reasons there is error in the decree of the circuit court of the county of Jefferson, rendered in this cause on the 15th day of April, 1875; and the same must therefore be reversed, set aside and annulled; and the appellee, William H. Travers, administrator, with the will annexed of Hannah Hurst deceased, must pay out of the assets in his hands to be administered to the appellant his costs about the prosecution of his appeal and supersedeas in this Court. And this Court proceeding to render such decree in the cause, as the said circuit court of the county of Jefferson should have rendered, it is adjudged, ordered and decreed, that the exceptions of the plaintiff filed to the second report of Commissioner Cleon Moore made in this cause be in part sustained and in part overruled, and that the exceptions filed by the defendant to the said report be also sustained in part and in part overruled. And it is further adjudged, ordered and decreed, that the said report of said commissioner be disaffirmed as to the first nine principal items, which are allowed the defendant as credits in said repoi't (including the items of interest thereon in said report allowed) the first of said principal items commencing “1858, March 28,” and that the said principal items and interest be rejected as not proper to be allowed the defendant as credits or offsets upon or to the three bonds executed by the defendant, to "Wm. G. Ferguson in his lifetime in the bill, in this cause mentioned and described, they having been by the said Hannah Hurst during her life and the said defendant appropriated as payment on the bond for five hundred dollars executed by the defendant to the said Hannah Hurst during her life and mentioned and referred to in the defendant’s answer filed in this cause; the court being of opinion, that the said items should bo so applied.

It is further adjudged, ordered and decreed, that the defendant be allowed credit by way of offset in this cause for the fifth, sixth and seventh items in his account Exhibit No. 2, filed in this cause, as charged therein, as against the throe bonds executed by the defendant to Wm. G. Ferguson; and that all the other items of the defendant’s said account No. 2, filed with his said answer be rejected and disallowed. It is further adjudged, ordered and decreed, that this cause be remanded to the circuit court of the county of Jefferson with instructions to the said circuit court fo recommit the said second report to one of its commissioners with instructions to said commissioner to restate the accounts in said report stated, excluding therefrom the said first nine items of credits or offsets and interest thereon, credited and allowed the defendant in said report; and that he allow the defendant all the other principal items of credit as off-sets, which are allowed or credited the defendant in said report with interest from the time allowed in said second report against the said three bonds executed by the defendant to Wm. G. Ferguson in the hill mentioned, treating each of said last named principal items in said report mentioned as being proved, including the principal items of the account of the defendant with the estate of Wm. G. Ferguson, deceased, as reported by said Commissioner Moore in his said second report; and that such commissioner, in addition to allowing the defendant all the principal items of credit and interest as aforesaid by way of offset hereinbefore directed to be allowed the defendant against tlie said three bonds executed by the defendant to said "Win. G. Ferguson, do allow the defendant the said fifth, sixth and seventh items of his said account No. 2, filed with his answer, as charged therein, with interest thereon from the commencement of the year in which they severally accrued; and that such commissioner be instructed to report to the said circuit court the balance, if any, due the plaintiff upon the said three bonds and proper interest thereon executed by the defendant to the said ¥m. G. Ferguson, deceased, in the bill mentioned after allowing the defendant said credits by way of offsets against the said three bonds; and that such other and further proceedings be had in this cause in the said circuit court as are in accordance with the principles and rules governing courts of equity.

Judges JoiinsoN and Snyder Concurred.

Decree Reversed. Cause Remanded.