Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
[78 NJSuper Page 84] The issue here is one of asserted liability of the defendant executor for reimbursement of plaintiffs, sons of the decedent, for payments by them of medical and hospital expenses arising out of the father's last illness. The appeal is from a judgment of involuntary dismissal with prejudice ordered by the trial judge at the end of the case, thereby precluding consideration of the issues by a jury.
Although not clearly apparent from the portion of the amended complaint set forth in the appendix, we are advised that it originally contained allegations that plaintiffs were induced to make the payments in question as a result of fraudulent misrepresentations by the father of financial inability to meet these expenses. But that contention was expressly withdrawn at the trial, and with it so much of the pretrial order as charges fraud.
Plaintiff Michael Deskovick gave the following testimony. He and his coplaintiff were two, apparently the eldest, of ten children of the decedent. The latter and his wife, a stepmother of plaintiffs, lived in a house on a tract of land which was also the site of Michael's home and business office. The father, Michael and Peter went into business together in 1934, but the sons bought out the father's interest in 1945, partly in cash and partly in deferred installments, which were still being paid at the rate of $100 per month as of the time of decedent's death, August 2, 1959.
Decedent became seriously ill and was hospitalized for two months in 1958. He returned to the hospital in the spring of 1959 and remained there until his death of cancer. Plaintiffs began to pay hospital and medical bills in August 1958, and paid some after decedent's death, as late as December 7, 1959. "Somebody" put the bills on Michael's desk from time to time "and [he] assumed them and paid them." He did not discuss the bills with his father "because [his] father was on his back. He was in a condition so that he couldn't talk." Sometimes, "you could talk to him. We always would hope that he would get better and sit down with him sometime and iron these things out, but things never improved with him * * * we didn't want to aggravate him with money problems while he was in that condition."
Over objection by defendant, Michael testified:
"Q. Did you intend to have your father repay you for these bills at a future date? A. I intended to do so somehow and in some way."
In the event of the father's death, Michael's intention, when he paid the bills, "was to get the estate to pay" them. He submitted the vouchers "in some hope that I would get that."
After reservation by the court on a motion for dismissal, the defense read Michael's pretrial depositions to the jury. Therein he testified, on examination by his own counsel:
"QUESTION: You say you did have conversations with your father prior to this date -- prior to the time he became ill -- whereby he indicated to you that he was in a financially embarrassed position or didn't have the money? ANSWER: He always cried the blues that he was up against it, you know. That is nothing new. That went on and on all the time. We never dreamed he had this kind of money laying there. I mean, that is something we didn't expect, so we just paid the tabs and as they came in we picked it up and would take care of it. Nobody else would ever pick up a tab. They just brought them down and gave them to me."
On renewal of the motion for judgment of dismissal the court granted it, stating:
"It seems to me, based upon the deposition read into the record, that there was intended at the time of the payment by Mr. Deskovick no repayment. He was then under the impression that his father didn't have any ...