Summary
In McCarthy v. Paris, 46 Idaho 165, 173, 267 P. 232, 240 (1928), this Court determined that the relationship between an employer and employee gave rise to a mutual, open and current account and that the statute of limitations did not begin to run until the service ends. Eagle Water argues that in McCarthy this Court focused on the check entered in the account ledger, which established the time from which the statute of limitations began to run.
Summary of this case from Eagle Water Co. v. Roundy Pole Fence Co.Opinion
No. 4544.
April 27, 1928.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.
Action on account for services as farm laborer. Judgment for plaintiff. Modified and affirmed.
Barber Barber, for Appellant.
Respondent could not apply a payment, made by appellant on her own account, to a debt of her husband. "While a creditor may apply a general payment on a just and valid demand, whether the correctness thereof be assented to by the debtor or not, the debt must be an actual and existing one." (21 R. C. L., p. 91; 30 Cyc. 1236; Stone v. Talbot, 4 Wis. 442; 2 Am. Eng. Ency. of Law, 2d ed., p. 422, and notes.)
A creditor, receiving a partial payment, cannot apply it in payment of items for which he cannot maintain an action. ( Armour Packing Co. v. Vinegar Bend Lbr. Co., 149 Ala. 205, 13 Ann. Cas. 951, and notes, p. 953, et seq., 42 So. 866; Kidder v. Norris, 18 N.H. 532; Bancroft v. Dumas, 21 Vt. 456; Royston v. May, 71 Ala. 400.)
And "after a payment has been lawfully applied upon a debt, either in pursuance of direction by the debtor, or applied by the creditor at his own election in the absence of such direction, such application of payment cannot be changed to another debt without the mutual consent of the creditor and debtor." (30 Cyc. 1239; 21 R. C. L., p. 93; Wait v. Homestead Bldg. Assn., 81 W. Va. 702, 21 A.L.R. 696, note, p. 712, 95 S.E. 203; Alexandria v. Patten, 4 Cranch (U.S.) 317, 2 L. ed. 633; Grasser etc. Brewing Co. v. Rogers, 112 Mich. 112, 67 Am. St. 389, 70 N.W. 445; Sturdevant Co. v. Fidelity Deposit Co., 92 Wn. 52, 158 P. 740, L.R.A. 1917C, 630.)
O.J. Paris' authority was limited to the work of the men about the ranch; he could not assume this liability on behalf of his principal.
Plaintiff in this action must prove the authority under which the agent acted. (21 R. C. L. 858.)
Persons dealing with an agent of obviously limited powers are bound to act accordingly. ( American Ry. Exp. Co. v. Mohawk Dairy Co., 250 Mass. 1, 35 A.L.R. 14, 21, 144 N.E. 721.)
The agent's implied authority is limited to the purposes for which the agency was created and to the acts and duties ordinarily entrusted to such an agent. (31 Cyc. 1337; 21 R. C. L. 854; Naylor v. Bowman, 37 Idaho 514, 217 P. 263; 39 Idaho 764, 230 P. 347.)
"Implied authority is defined as that authority which the principal intends his agent to possess and which is implied from the conduct of the principal, as from previous courses of dealing, or from conduct of the principal under circumstances working against it an estoppel. (2 C. J., sec. 218, p. 576.)
". . . . It is the conduct of the principal, and not the agent, that binds the principal. ( Madill v. Spokane Cattle Loan Co., 39 Idaho 754, 230 P. 45; 2 C. J., sec. 214, p. 574; Anderson v. Patten, 157 Iowa, 23, 137 N.W. 1050.)
". . . . he cannot rely upon the agent's statement or assumption of authority, or upon the mere presumption of authority. ( Bond v. Pontiac O. P. A. R. Co., 62 Mich. 643, 4 Am. St. 885, 29 N.W. 482.)" ( Chamberlain v. Amalgamated Sugar Co., 42 Idaho 604, 610-612, 247 P. 12, cases pp. 605, 606.)
Authority to settle claims against the principal, arising out of a contract between him and a third person, however, would not justify the agent in binding his principal to pay that third person's debts to others. (Mechem, sec. 1021; Cleveland Ry. Co. v. Shea, 174 Ind. 303, 91 N.E. 1081; 31 Cyc. 1388.)
And the declaration of an agent touching a matter not within the scope of his authority is not binding upon the principal. (21 R. C. L., p. 850; Atlantic Coast Line Co. v. Dawes, 100 S.C. 258, Ann. Cas. 1917A, 1272, 84 S.E. 830.)
"In the case, however, of a hiring of services without agreement as to term or amount of compensation, and in the absence of evidence of payments, it is declared that the law will not, under such circumstances, imply an agreement that compensation shall be postponed until the termination of the employment." (17 R. C. L., p. 797; Davis v. Gorton, 16 N.Y. 255, 69 Am. Dec. 694; McMullen v. Guest, 6 Tex. 275; In re Ward, 21 Ohio C.C. 753.)
A mutual account implies a course of dealing where each party furnishes credit to the other on the reliance that, upon settlement, the accounts will be allowed so that one will reduce the balance due on the other. ( Re Hiscock, 79 Mich. 536, 44 N.W. 947; Brock v. Wildey, 125 Ga. 82, 54 S.E. 195; Smith v. Hembree, 3 Ga. App. 510, 60 S.E. 126.)
An account is mutual only where there is indebtedness on both sides. ( Leonard v. United States, 18 Ct. of Cl. 382.)
Reasonable value may not be proven by mere hearsay; nor opinions based upon mere hearsay given in evidence. (1 Jones (Horwitz), pp. 865, 866; 10 R. C. L., Evidence, sec. 132; McKelvey, Evidence, 3d ed., pp. 315, 316.)
And particularly, evidence as to a "going wage" is objectionable where based on mere hearsay. ( Lewis v. Eagle Ins. Co., 10 Gray (Mass.), 508; 10 R. C. L., Evidence, sec. 132; 4 Chamberlayne, Ev., pp. 3726, 3727; Coleman v. Southwick, 9 Johns. (N.Y.) 45, 6 Am. Dec. 253.)
Delana Delana, for Respondent.
"A general objection to evidence is not sufficient for the purpose of review on appeal where the evidence is admissible as to one party but not as to another; but in such case the lower court must have been requested to limit the application of the evidence to the party against whom it was competent." (3 C. J. 823; Delger v. Jacobs, 19 Cal.App. 197, 125 P. 258, at 262; Keesling v. Doyle, 8 Ind. App. 43, 35 N.E. 126, at 127; Taylor v. Deverell, 43 Kan. 469, 23 P. 628, at 629; Cronfeldt v. Arrol, 50 Minn. 327, 36 Am. St. 648, 52 N.W. 857; Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 58 N.E. 162.)
The transfer of the property by Bud Paris to the defendant, Margaret N. Paris, without provision for the plaintiff's debt, owed by Bud Paris, was fraudulent and void. (C. S., sec. 5433.)
An heir is liable for the debt of his ancestor to the extent of the property received by him. (21 L.R.A. 89, note; 39 L.R.A., N.S., 689, note; Whelan v. Swain, 132 Cal. 389, 64 Pac. 560; McCarthy v. Mullen, 82 N.J.L. 379, 82 Atl. 51, 39 L.R.A., N.S., 688; Forman v. Stickney, 77 Ill. 576.)
The debtor has the primary right to direct the application of payments made. (30 Cyc., p. 1288.)
In the absence of such direction, the creditor has the right to apply the payment on any debt owed by the debtor. (30 Cyc., p. 1233.)
In the absence of any agreement, the payment should be applied to the oldest debt. (30 Cyc., p. 1243.)
Where the employment is continuous, and for an indefinite time, with no time of payment specified, the statute of limitations does not begin to run until the service ends. ( Ah How v. Furth, 13 Wn. 550, 43 P. 639; Grisham v. Lee, 61 Kan. 533, 60 P. 312; Kansas Pac. Ry. Co. v. Roberson, 3 Colo. 142; Jackson v. Mull, 6 Wyo. 55, 42 P. 603; Carter v. Carter, 36 Mich. 207.)
Farmers living in the vicinity may testify as to the value of farm services, and that the same is not expert testimony, but opinions given from common observations and experience. (See North Texas Construction Co. v. Bostick (Tex.), 80 S.W. 109; Bogue v. Corwine, 80 Mo. App. 616, at 620; Cowdery v. McChesney, 124 Cal. 363, 57 P. 221; Hefferon v. Brown, 155 Ill. 322, 40 N.E. 583, at 584; Kestler v. Kern, 2 Ind. App. 488, 28 N.E. 726, at 732; Croft v. Chicago, R. L. P. Ry. Co., 134 Iowa, 411, 109 N.W. 723, at 726; Chamberlain on Evidence, sec. 2135; 17 Cyc. 126.)
Where there is a dispute as to the wages under a contract, evidence as to what is a reasonable wage or the customary going wages is admissible. ( Edelen v. Herman, 162 Ky. 500, 172 S.W. 936, L.R.A. 1915C, 1208; Richardson v. McGoldrick, 43 Mich. 476, 5 N.W. 672; Pettet v. Johnston, 83 Wn. 663, 145 Pac. 985; Ellis v. Woodburn, 89 Cal. 129, 26 P. 963, L.R.A. 1915C, p. 113, note 9.)
In a suit on quantum meruit for the reasonable value of labor, evidence of the usual or going wage is admissible. ( Allen v. Urdangen, 141 Iowa, 280, 119 N.W. 724; Schalich v. Bell, 173 Cal. 773, 161 P. 983; Geiger v. Kiser, 47 Colo. 297, 107 P. 267; Anthony v. Nourse, 34 Okl. 795, 127 Pac. 491; Cornelius v. Grant, 8 Mo. 59, at 63; Thompson v. Boyle, 85 Pa. St. 477; Murray v. Ware, 1 Bibb (Ky.), 325, 4 Am. Dec. 637; Richardson v. McGoldrick, 43 Mich. 476, 5 N.W. 672.)
Tim McCarthy commenced this action January 15, 1924, against appellant and her son, Orval J. Paris, to recover for wages as farm laborer from March 29, 1919, to January 16, 1920, inclusive, alleging said services to have been reasonably worth the sum of $75 per month. The complaint admits payment of $122 on account, and alleges a balance due of $547. The answer denies the allegations of the complaint, alleges $50 per month is a reasonable sum for the services rendered, that said sum was the agreed price, and that there is nothing due or owing on account of labor performed for appellant Margaret N. Paris. She further pleads the statute of limitations as to any services rendered prior to January 1, 1920. The action was dismissed as to Orval J. Paris at the close of the testimony. Tim McCarthy, plaintiff below, died during the pendency of this appeal, and his administrator was substituted as respondent herein.
Appellant, Margaret N. Paris, was the wife of Bud Paris, deceased. Tim McCarthy went to work for Bud Paris in 1918, performing services as general farm laborer, and remaining on the farm after Paris' death on March 31, 1919, until January 17, 1920. After Bud Paris died, it is admitted that McCarthy continued in the same capacity as an employee of appellant. Orval J. Paris managed the farm for his mother, paid the men, directed the work and was authorized to settle with them. Tim McCarthy began to work for Bud Paris without any agreement as to the amount of wages he was to receive, time of payment or term of employment. After the death of Paris, according to the testimony of plaintiff, McCarthy continued to do the same kind of work, likewise without any agreement as to wages. The testimony is conflicting, appellant's witnesses testifying to an agreement to the effect that McCarthy was to work for Bud Paris part of the time for his board and part of the time for his board and one dollar per day, and that on the death of Paris it was understood that he was to receive $50 per month. The testimony is ample to sustain the evident conclusion of the jury that no agreement was made as to the rate of compensation at any time.
The uncontroverted testimony is to the effect that Tim McCarthy asked for and received eight payments on account in cash and checks at irregular intervals, and in amounts varying from 50 cents to $60, from appellant, and in addition, at irregular intervals between March, 1919, and January 16, 1920, appellant furnished Tim McCarthy with articles of wearing apparel, tobacco, razor blades, laundry, etc., and charged these items to his account. On one occasion, a check for $30 was given him "for hay" used in purchasing hay by McCarthy from one Cluckholm. Tim's brother, Jim McCarthy, owed Bud Paris $198 for hay, payment of which, by oral agreement between Bud Paris, Tim McCarthy and his brother Jim, was assumed by Tim McCarthy. There is no controversy over this item, nor as to the total amount to be credited appellant, i. e., $373.10, on account of moneys paid and the miscellaneous items referred to.
Appellant contends that the $198 and the amount paid on account should be applied in payment of wages earned by Tim McCarthy after Bud Paris' decease. On the other hand, Tim McCarthy applied the payments received from appellant, including the $198 debt of his brother Jim that he had assumed, to payment for the labor furnished Bud Paris, and applied the balance of $122 to the labor furnished after his death. It appears from the record that the Paris farm and cattle were community property; that at the time Bud Paris was ill, twenty days before his decease, he conveyed and transferred to his wife, appellant, all his interest in both the land and cattle, presumably to avoid administration thereon; and that there was no other property belonging to Paris or the community.
It is first contended that Tim McCarthy could not apply a payment made by appellant on her own account to a debt of her husband. When these payments were made by appellant, she did not direct in what manner nor to the payment of what accounts they should apply.
The claim for wages rendered at the request of Bud Paris prior to March 11, 1919, covering a period of five months and four days, was a community debt, for the payment of which, appellant, as survivor of the community, was not personally liable, it not being shown to be her contract, or for the use and benefit of her separate estate ( Thomas v. Young, 42 Idaho 240, 245 P. 75; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497), and for which no judgment could have been entered against appellant. ( Jaeckel v. Pease, supra.)
Her liability to the plaintiff, if she was the fraudulent grantee of the property, was that only of a trustee; and so long as she retained the property was under no personal liability for her grantor's debts. (27 C. J., p. 668.) Where a payment is made by one liable as an individual and also as a trustee, the creditor can apply the payment only to the individual debt. ( Sawyer, Admr., v. Tappan, 14 N.H. 352; 30 Cyc., p. 1237. See, also, Goddard v. Cox, 2 Strange, 1194, 93 Eng. Reprint, 1122, and Ramey-Milburn Co. v. Ford, 146 Ark. 563, 226 S.W. 132.)
Appellant not being personally liable for debt incurred for the community by her husband, the amounts paid by her after conveyance of the property to her and after the death of her husband could not be applied, without her authority, to the payment of said community debt. McCarthy's remedy in such a case was to subject the property conveyed by Paris to his wife to the payment of his claim, through administration of the estate of Bud Paris (9 R. C. L., p. 107, sec. 105), or by other appropriate procedure.
Appellant pleads C. S., sec. 6610, in bar of any demand on account of services rendered prior to January 1, 1920. This section requires an action "upon a contract, obligation or liability not founded upon an instrument in writing," to be brought within four years.
C. S., sec. 6615 reads:
"In an action brought to recover a balance due upon a mutual open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side."
We think the facts in this case show it to be an action to recover a balance due on a mutual, open, and current account, and that there have been reciprocal demands between the parties within the purview of this section, the last item of which was a check given by appellant to Tim McCarthy January 17, 1920. (See 37 C. J. 865; Wood on Limitations, 4th ed., p. 1430.) The complaint was filed January 15, 1924, and the action was commenced in time.
Again, while the authorities are not uniform, we consider the better rule to be that where the employment is continuous, for an indefinite term, without the time of payment being specified, the statute does not begin to run until the service ends, which in this case was on January 16, 1920. (37 C. J. 824; Morrissey v. Faucett, 28 Wn. 52, 68 P. 352; Ah How v. Furth, 13 Wn. 550, 43 P. 639; Grisham v. Lee, 61 Kan. 533, 60 P. 312; Jackson v. Mull, 6 Wyo. 55, 42 P. 603; Phifer v. Phifer Estate, 112 Neb. 327, 199 N.W. 511.)
The remaining assignments of error relate to the proof of the value of farm laborers' services for the period covered by this action.
Plaintiff's witnesses as to the value of farm labor were either farmer employers of labor or farm laborers of the vicinity, who observed McCarthy at work, were familiar with the conditions, and testified to what was the "going wage" for farm labor in that section. It is true that nearly all testified to the effect that they had heard the matter of wages discussed, but each knew what he was paying or receiving, and in many instances what his neighbors were paying. The testimony is well within the rule that —
"A witness who has observed the rendition of services, and has a sufficient familiarity with services of that nature to form a reasonable inference as to value, may state such inference. . . . ." (22 C. J. 593, sec. 688:)
The evidence is insufficient to establish authority in Orval J. Paris to bind appellant by any agreement to assume the indebtedness incurred by Bud Paris in his lifetime.
The verdict is for a lump sum and does not show what portion thereof was allowed for services rendered Bud Paris, or what portion was allowed for services rendered appellant after she acquired the farm on March 11, 1919. The record does show that McCarthy worked until January 17, 1920, for appellant, a period of ten months and six days. It can be calculated from the record that after deducting the amounts paid by appellant after her husband's death, aggregating $373.10, there remains a balance due respondent for services rendered appellant after March 11, 1919, of $342.29.
We recommend that the judgment be reduced to the sum of $342.29, and affirmed in that amount, provided respondent files a release of all above that amount within ten days of the coining down of the remittitur herein, with the clerk of the district court; otherwise, that a new trial be granted. Costs to respondent.
McNaughton and Brinck, CC., concur.
The foregoing is approved as the opinion of the court, and the judgment is modified and affirmed in accordance with the views therein expressed. Costs to respondent.
Wm. E. Lee, C.J., and Taylor and T. Bailey Lee, JJ., concur.