JOEL A. HALLADAY, Appellant,
FRED V. HAAS and ELEANOR HALLADAY, as Administrators, etc., of SHERMAN HALLADAY, Deceased, Respondents.
APPEAL by the plaintiff, Joel A. Halladay, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 9th day of November, 1910, upon the report of a referee dismissing the complaint.
The action was commenced on the 28th day of October, 1907, by the filing of a verified claim by the plaintiff against the estate of Sherman Halladay, deceased. The defendant administrators rejected such claim on December 16, 1907. Consent was filed that the surrogate of Jefferson county might hear and determine the claim on the judicial settlement of the administrators' account. A second claim was presented on January 21, 1908, was rejected February 15, 1908, and a like consent was filed that the surrogate might hear and determine the same. On March 25, 1908, the parties agreed in writing that the matters in controversy be referred to a referee to hear, try and determine the same. On May 14, 1908, the surrogate approved the reference and an order was duly entered to that effect. The referee did hear, try and determine the matters in controversy with the result above indicated.
Thomas Burns and John O'Leary, for the appellant.
Harold L. Hooker, for the respondents.
MCLENNAN, P. J.:
The first claim presented by the plaintiff amounted to $18,601.44, less a credit of $2,000, and was for work, labor and
services alleged to have been performed by the plaintiff in carrying on a farm of about 200 acres owned by the decedent from March 1, 1886, to August 17, 1906, a period of twenty years, and which services it is claimed were of the value of $15,343.75. There was also a claim for borrowed money, personal property furnished to decedent and moneys paid out for him from 1885 to 1902 amounting to $2,485. Also, a part of such claim was for notes alleged to have been given by the plaintiff to renew notes of decedent--notes given for goods purchased for the benefit of decedent, amounting to $772.69, making the total of such first claim $18,601.44. There was credited upon such claim, extending over a period of twenty years, $100 a year, amounting to $2,000, leaving a balance of $16,601.44. No items of such credit are stated.
It will be observed that the chief item of this claim is for work, labor and services amounting to $15,343.75, which it is claimed the plaintiff is entitled to receive because of working and carrying on the decedent's farm for a period of twenty years. The referee has found that the plaintiff's evidence was insufficient to establish any contract of hiring or to show that there was any agreement or understanding between the plaintiff and the decedent that he should receive compensation for services rendered by him other than such as he received from the proceeds of the farm.
I think this finding of the referee is abundantly supported by the evidence. Concededly, the deceased owned a farm in the town of Clayton of 216 acres. In 1886 he left the farm with his wife and a younger son and daughter and went to reside in the village of Depauville, two or three miles distant from the farm, and the plaintiff and his wife moved onto the farm. It is undisputed that he worked it in the ordinary way; that in addition to his own work he hired such other help as was necessary. The evidence fails to show with any degree of certainty that there ever was any agreement of hiring between the plaintiff and the decedent. There are some vague statements made by some of the neighbors, most of them relatives of the plaintiff, to the effect that the deceased said he was to pay $500 a year to his son for his services; that he would be well paid for his services and that when he, the deceased, got
through the plaintiff would have the farm for the services which he rendered. Very little effect can be given to the statement of the witnesses that he was to have $500 a year for his services, because the plaintiff himself did not so understand the bargain, because he presented a claim for $750 a year for the time he worked upon such farm. But aside from all that, the evidence conclusively shows that the plaintiff was working his father's farm, receiving the proceeds therefrom, applying the proceeds to his own use and to that of his father. In other words, that both families were getting their living off the farm and that the plaintiff had whatever was left. It appears conclusively that the plaintiff received the checks for the milk; in the year 1899 a check for $145.34; in 1901 a check for $180.91; in 1902 a check for $132.21; in 1903 a check for $313.93; in 1904 a check for $215.52, and for 1905 checks payable to his order amounting to $385, and during the year 1906, prior to the date of Sherman Halladay's death, he received checks payable to his order amounting to $215.29. It also appeared that between January, 1899, and July, 1902, plaintiff received for hay $3,084.06; in 1903, $856.02; in 1904, $981.79; between the 26th day of December, 1904, and the 10th day of July, 1905, plaintiff received for hay raised upon the farm checks payable to his order amounting to $1,104.32.
So far as the evidence discloses, these moneys and others, to which the referee calls attention in his opinion and findings, were received by the plaintiff, and the major amount of the moneys were used by the plaintiff. It appears that at certain times the plaintiff gave to the decedent certain moneys, delivered to him certain of the produce raised upon the farm, but no account was kept between the plaintiff and his father, nothing to show how much he turned over to the father, nothing to show the value of the produce delivered to the father, and presumably the plaintiff gave all the proof that he could to establish such payments.
It seems to me that it would be idle to attempt to base upon the evidence in this case a finding to the effect that the plaintiff was to receive by agreement with his father any specific sum per month or by the year for the services rendered by ...