of J. W. Lansinger at the Union Trust | Company at Lancaster, Pa., and then held by the Union Trust Company of Lancaster, and having so obtained said note, dated June 10, 1912, for the purpose of renewing said other note, dated March 8, 1912, held as aforesaid by the Union Trust Company of Lancaster, did not renew or lift said lastmentioned note, but feloniously converted the note thus unlawfully obtained, dated June 10, 1912, as aforesaid, to his own use." To this indictment the defendant has filed a demurrer, in which it is alleged that the indictment does not charge the crime of larceny, and points out the particulars in which it fails to do so in the fourth, fifth and sixth reasons. The fourth reason is, "The indictment failed to set forth that said renewal note dated June 10, 1912, was obtained from Christian Kunzler by any artifice or trick, with the intent to cheat and defraud him, the said Kunzler." When the defendant obtained the note for the purpose of renewing another note given by the prosecutor, and held by a third party, and did not intend to so use it, as is shown by his conversion of it to his own use, it was a trick or artifice on his part to obtain possession of it. It is not necessary for the indictment to call this a trick or artifice, but if the facts alleged 119 Pa. 254; Com. v. Yerkes, 119 Pa. 266, and Com. v. Dehle, 42 Sup. 300. The sixth reason is that, "The indictment fails to set forth that said Christian Kunzler incurred any liability on the said renewal note of June 10, 1912, or was compelled to pay the same or did pay the same or any part thereof, and this he, the said J. W. Lansinger, is ready to verify." That a signed promissory note is the subject of larceny is decided, on the authority of the cases therein cited, in Com. v. Pioso, 19 L. L. R. 145. It is not necessary to aver or prove that the prosecutor had been compelled to pay the note or did pay it. The mere fact that it was appropriated to his own use by the defendant is larceny, and the indictment charges the defendant with having done this. Being of the opinion that the indictment does charge the defendant with the crime of larceny we dismiss the demurrer and direct the defendant to plead to the indictment. Legal Miscellany. show it to be such, it is all that the law O. C. OPINION AND ADJUDICArequires. The fifth reason is that, "The indictment fails to set forth that said Christian Kunzler, when he delivered the said renewal note of June 10, 1912, did not intend to pass the property therein to said J. W. Lansinger." The fact as alleged in the indictment that the prosecutor gave the note to the defendant to renew another note held by a third party, of which he, the prosecutor, was the maker, is setting forth that he did not intend to pass the property therein to the defendant. This was only giving the defendant possession, but not the property of the note. This view of the law on both these questions is in accordance with the case of Com. v. Pioso, 19 L. L. R. 145, decided by this. Court, and also of Com. v. Eichelberger, TIONS. By JUDGE SMITH: Adjudications: Thursday, December 11, 1913. Monday, December 15, 1913. Levi Ortman, Washington Borough. Mathias Esslinger, West Earl. Estate of Chas. W. Metzger, deceased. Interlocutory opinion as to distribution. cedent, was the owner of a farm in Prov LANCASTER LAW REVIEW. idence' township, this county, prior to VOL. XXXI.] FRIDAY, DEC. 26, 1913. [No.8 Superior Court. Hart, Appellant, v. Drumm. Decedents' Estates-Claim for boardPresumption of contract-Presumption of periodical payment. There can be no recovery in a suit for board against a decedent's estate where the claimant and the decedent, his uncle, lived together as a family, and under circumstances rebutting the presumption of a contract to pay. The payment of board is presumed to be made at stated periods, and there can be no recovery where suit is brought against a decedent's estate for board and no evidence is produced to rebut the presumption that payment was so made. Whether or not there is suffi cient testimony to rebut this presumption is a question for the court. the war. He conveyed it to his mother in 1861, who owned it until his return from the war in 1865, when it was conveyed to him. He continued to own it until 1884 when he deeded it to the plaintiff and his brother Samuel, who subsequently conveyed his interest to the plaintiff, who owned it at the time of Samuel Drumm's death in 1909. At the time of his death he was seventy-eight years of age. When the farm was reconveyed to Samuel Drumm in 1865, his mother, his sister, Mrs. Hart, with five children, of whom the plaintiff was one, lived there with him. The plaintiff was then about fourteen years of age. He, one sister and one brother, continued to live with Samuel Drumm until the conveyance of the property to the plaintiff and his brother, Samuel, in 1884. Subsequently Samuel Hart married and moved away, the others continuing to live there together until Samuel Drumm's death. Samuel Drumm did some work about the farm, even up to the time of his death. What he did in the last years of his life was not of much account, consisting principally in helping in the garden and about the house. He also bought some supplies for the house, but they were not of much value. No contract was made by Samuel Drumm with the plaintiff for the payment of boarding, and when asked by the plaintiff to pay boarding he said he would not pay any. When this occurred does not appear. There was no testimony that any boarding was ever paid for, nor that any other demand than this attempt to get him to pay boarding, was made. He had a judgment note against the plaintiff for $1,500, dated April 1, 1897, payable one year after date without interest. The note bears the following endorsement: "June 5, 1908, received $100 on the within note," signed Gentlemen of the jury: The plaintiff "Samuel Drumm"; "June 8, 1909, reseeks in this action to recover for board- ceived $100 on the within note," signed, ing, and for the expense and inconveni-"Samuel Drumm." The former of these ence of holding the funeral of Samuel Drumm. Where a case is re-tried on the record of a previous trial, and on the previous trial the court ruled out the part of the claim which was for nursing the decedent, on the ground that its value was not shown, the plaintiff cannot complain if the court fails to submit it to the jury on the re-trial, though it might properly have been, where the claim was necessarily for a very small amount and the plaintiff made no request that it be referred to the jury. Appeal No. 115 of October Term, 1913, by plaintiff, from judgment of C. P. of Lancaster County, to May Term, 1911, No. 51, on a verdict for plaintiff, Benjamin Hart, and against defendants, Warren M. Drumm et al., administrators of Samuel Drumm, deceased. Affirmed. (For opinion of Court below on rule for new trial, see 30 Law Review, 145.) The Court below (HASSLER, J.) (HASSLER, J.) charged the jury as follows: The undisputed testimony shows the following facts: Samuel Drumm, the de payments was made during the time and near the end of it for which plaintiff claims for the boarding of said Samuel Drumm. He also had other notes, his estate amounting to about $2,600. During all the time for which boarding is claimed he received a pension of $12 a month. Under these circumstances should the plaintiff be compensated for the boarding of Samuel Drumm? It is well settled that when one furnishes boarding to another the law raises an implied promise on the part of the one receiving it to pay for it. While the relation of parent and child is sufficient to rebut this presumption, other relationship is not sufficient of itself to do so. In such case there must be circumstances in addition to the relationship to rebut it. The fact that the parties lived together and sustained the family relation between them is sufficient, as is the existence of other circumstances to show that payment was not expected for the boarding rendered, that is, that the parties did not deal with each other as debtor and creditor. In this case the parties bore the relationship of uncle and nephew, which of itself is not sufficient to rebut the presumption of an implied promise on the part of Samuel Drumm to pay the plaintiff for the board which he received. [They did, however, sustain the family relation between them, and had done so for nearly fifty years. When the plaintiff was a boy of fourteen, Samuel Drumm owned the farm and kept him and his brothers and sisters and mother there, all as one family, some of them until the conveyance of the property to the plaintiff. When the property was so conveyed there is no evidence of a change of such relation, they continuing to live there the same afterwards as before.] 4. The note which the plaintiff gave Samuel Drumm for $1,500 was to be without interest. The plaintiff wanted to make an arrangement with his uncle to have him pay board, but he said he would not do So. He was permitted to board there after that, with the plaintiff having this knowledge that he would not pay board. If he boarded him on this condition he could not expect nor is he entitled to recover for it. During the time it is now claimed that there was an implied promise on the part of Samuel Drumm to pay boarding, the plaintiff made one pay ment to him of $100 on an indebtedness which Samuel Drumm had against him. The claim of the plaintiff was not made until after the death of Samuel Drumm, and it covered a period of over four years. [There is no affirmative proof that the board has not been paid, even though there was an implied promise that he was to pay for it.] 5. In cases such as this, as in all others where the testimony does not make out a case in which the plaintiff is entitled to recover, it is the duty of the Court to instruct the jury to find a verdict for the defendant. It is decided (Swires v. Parsons, 5 W. & S., 357) that where there is no dispute that the parties lived together under such circumstances as to rebut the presumption that he intended to pay and she intended to collect for the services, that is under circumstances which repelled the idea of a contract, the Court committed no error in instructing the jury that she could not recover. In another case (DeFrance v. Austin, 9 Pa., 309), the Supreme Court reversed the Court below, because it did. not give binding instructions to the jury to find a verdict for the defendant, where the claimant for services lived with the defendant under such circumstances as to rebut the presumption of a contract to pay for them. In another case (Lantz v. Frey and wife, 14 Pa., 201), it is held that binding instructions were properly given where the relations, under which the parties lived, showed that neither contemplated remuneration by the payment of wages nor thought of such a thing at the time the contract was made. (Neal's Executors v. Gilmore, 79 Pa., 421, is to the same effect. Neal v. Engle, 7 Atlantic, 60, 4 Sadler, 1, appears not to agree with these cases. An examination of it, however, shows that the testimony in that case required its submission to the jury.) [In this case there are such circumstances, as we have shown, and about which there was no dispute, which show that the board was furnished without any contemplation on the part of the parties that it should be paid for, and the plaintiff therefore cannot recover.] 6. [Another reason why plaintiff cannot recover is the fact that no affirmative proof was offered to show that the boarding was not paid for.] 5. The payment of wages for domestic services and payment of board are presumed to be made at stated periods, and where suit is brought against a decedent's estate, and the plaintiff offers no affirmative evidence nor proves any circumstance to rebut the presumption that payment was made, a verdict should be directed for the defendant: (McConnell's Appeal, 97 Pa., 31; Taylor v. Beatty, 202 Pa., 120; Cummiskey's Estate, 224 Pa., 509; Winfield v. Beaver Trust Co., 229 Pa., 530. The latter case and Gregory's Ex'rs. v. Commonwealth, 121 Pa., 611, decide that whether there is testimony sufficient to rebut this presumption is a question for the Court.) In this case there is no affirmative proof that boarding had not been paid, nor that any demand had been made for it. It is true that Samuel Hart testified that it had not been paid, to the best of his knowledge, but he showed that he had no knowledge of the subject, basing his opinion entirely on the fact that none was paid to him when he was the part owner of the farm some twentyfive years before. The sister of the claimant, Mary Hart, testified that the claimant spoke to the decedent about paying board, and he said he would not pay any. It does not appear when the conversation occurred. Plaintiff's claim according to his statement covered a period of twenty-six years. It may have been years ago that this conversation took place, being before the period during which we instructed the jury the claimant might recover for, viz., the last four years of the decedent's life. If it did occur prior to that time it would be no evidence of the non-payment of board during that time. And unless it was close to the time of the decedent's death, it would be no proof, even then, that it was not paid. Nor do we regard it, in any view, as evidence of non-payment, but only of Samuel Drumm's refusal to enter into a contract for the payment of board. The plaintiff, therefore, is not entitled to recover for boarding of Samuel Drumm. [The defendant does not contest two items of plaintiff's claim, viz., For holding the funeral and supplies for the funeral amounting to $31, which, with interest at the time of the trial, amounted to $35.65. Under the views we have expressed the plaintiff is not entitled to recover more than that amount.] 7. We, therefore, instruct you to find a verdict for the plaintiff for $38.44 for services and supplies furnished at the funeral, with interest from that time to date. THE COURT: Plaintiff asks me to say to you: 1. If the jury believe that the relationship between Benjamin Hart, the plaintiff, and Samuel Drumm, his uncle, the defendant, were not that of employer and employee, nor of boarding-house keeper and boarder, but was one of intimate family relation, of lax business relations, and the plaintiff was indebted to the defendant during the period of the running of the claim in suit, the strict rule applicable to purely business relations cannot be invoked by the defendant. Answer. That point we refuse. [1] 2. Delay in collecting the board during the decedent's lifetime will not prevent the collection of it after his death, when the claimant was related to the decedent and there appears good cause for the leniency shown in collecting. Answer. That point we refuse. [2] 3. While it is true there is no evidence of any demand having been made upon decedent in his lifetime, and the failure to make a demand is always a circumstance to which much importance attaches, nevertheless a failure to make a demand will not always have the effect of negativing the idea of the contract. Answer. We refuse this point and instruct the jury that, under the evidence, there can be no recovery for boarding. [3] On appeal the plaintiff assigned error [1-7] as above. B. F. Davis and Coyle & Keller, for appellants. There was an implied promise to pay, and the facts warranted a finding for plaintiff. Mewes v. Parke, Ex'r., 1 Chester Co. R., 532. Smith v. Milligan, 43 Pa., 107. Neale, Ex., v. Engle, 7 Atl. Rep., 60. Curry v. Curry, 114 Pa., 367. The loan of money rebutted the presumption of periodical payment. To overcome the implied promise to pay for board and lodging, there must be evidence of an intention not only to receive, but to give without compensation. Smith v. Milligan, 43 Pa., 107. The plaintiff had not placed himself in loco parentis to the decedent, who was his nephew. A failure to make demand during decedent's lifetime does not negative the idea of a contract. McTammany's Estate, 44 Pa. Super., 484. Ewing's Estate, 18 L. L. R., 72. Ranninger's Appeal, 118 Pa., 20. Barry's Appeal, 2 Cent. Rep., 291. Lewis' Estate, 156 Pa., 357. Patterson's Estate, 9 Dist. Rep., 259. The"family relation" did not govern this case, as the requisite obligation and dependence did not exist. Words and Phrases, Vol. 3. Sec. 2673. Estate of Krause, 12 Dauphin Co. Rep., 293. Eckert's Estate, 2 Pears., 476. Hatfield's Estate, 50 Pa. Super., 450. Mayforth's Appeal, 2 Atl. Rep., 28. Wall's Appeal, III Pa., 460. The relationship of uncle and nephew does not rebut the presumption of a contract to pay for services rendered or board furnished. Hanway's Est., 2 Chest. L. R., 531. Eckert's Estate, 2 Pears., 476. McCarthy's Est., 9 Phila., 318. Mewes v. Park., 1 Chest., 532. Ewing's Est., 18 Lanc. L. R., 73. Smith v. Milligan, 43 Pa., 107. Ranninger's Appeal, 118 Pa., 20. Gerz's Exec. v. Demarra's Exec., 162 Pa., 530. The facts and circumstances rebutted the presumption of periodical payment, the services not being those of a menial or domestic servant. Sellen v. Norman, 4 C. P., 80. Winfield v. Beaver Trust Co., 229 Pa., 530. Lewis' Estate, 156 Pa., 337Cummiskey's Estate, 224 Pa., 501. Taylor v. Beatty, 202 Pa., 120. Carpenter v. Hays, 153 Pa., 432. Gregory v. Com., 121 Pa., 611. Hatfield's Estate, 56 Pa., 450. Even if this presumption applied to board it would not to the nursing for three weeks. The case should have been submitted to the jury. Want of evidence of the value of services does not preclude a recovery on a quantum meruit. Dorsey's Estate, 21 Law Review, 405. Neel v. Neel, 59 Pa., 347. Hatfield's Estate, 50 Pa. Super., 450. Appellant would hardly have conman who owed him for board, etc., and fessed judgment to and for $1,500 to a made a part payment on it. There was a presumption of payment of the board and lodging at stated periods. Carpenter v. Hayes, 153 Pa., 432. a presumption is for the court. Winfield v. Beaver Trust Co., 229 Pa., |