Lang's Admr. v. Ward

4 Ky. Op. 494, 1870 Ky. LEXIS 406

• Court: Court of Appeals of Kentucky
• Decided: September 26, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Hardin:

No error is perceived to the prejudice of the appellants, in either of the decisions or rulings of the circuit court in this case.

The rejected testimony of George, offered for the purpose of proving a hearsay statement of Louis Ward concerning the terms of renting Mrs. Lang’s land, was not admissible and properly disallowed. There was no such privity of interest between Louis Ward and the appellee, as to render his admission evidence against him, and the fact which the appellants sought to establish through the medium of the oral declaration of Louis Ward, was not one of traditionary reputation or otherwise such, as under peculiar circumstances, might be proved by mere hearsay evidence.

Respecting the action of the court in passing on the motions for instructing the jury, the objections of the appellants’ counsel, seem to-have reference to the sufficiency of the evidence on which the court predicated its rulings, rather than the correctness of the instructions as abstract propositions of law.

There is scarcely any contrariety of evidence as to the facts that during the residence of Mrs. Lang in the family of the Wards, her great age and affliction, rendered much care, attention and trouble necessary for her comfort and convenience, which boarders do not ordinarily require, and that these were faithfully and labriously rendered and borne by the appellee, either for her brothers who received compensation for board out of the rent of the land, ior as a gratuity to Mrs. Lang, or under an express or implied promise of compensation from her; and without discussing the instructions at any length, we deem it sufficient to say that they fairly and fully present the law of the case, as developed by the evidence as to the existence and binding force of an express or implied undertaking by Mrs. Lang to pay the reasonable value of said services.

Porter & Greathouse, for appellants. Turner & Twyman, for appellee.

As to so much of the services as may have been within the statutory bar (of limitation, unless embraced by a new promise to pay, the evidence sufficiently conduced to prove such a new undertaking as to authorize the instruction referring it to the jury, and that instruction does not seem liable to any objection.

The attempt to show a ground for a' new trial for newly discovered evidence, was properly deemed unavailing by the court below both because the proposed proof of Louis Ward’s declarations were inadmissible, and if this were not so the fact proposed to be proved was within the general scope of the evidence already heard, and was merely cumulative.

Wherefore the judgment is affirmed.