Cromwell v. Simons, 88.

• Decision Date: 18 January 1922
• Docket Number: 88.
• Citation: 280 F. 663
• Parties: CROMWELL et al. v. SIMONS.
• Court: U.S. Court of Appeals — Second Circuit

280 F. 663

CROMWELL et al. v. SIMONS.

No. 88.

United States Court of Appeals, Second Circuit.

January 18, 1922

Sullivan & Cromwell, of New York City, for plaintiff in error cromwell.

Edgar T. Brackett, of Saratoga Springs, N.Y. (Edgar T. Brackett and Philip L. Miller, both of New York City, of counsel), for plaintiff in error Cramer.

Roger Foster, of New York City (James A. Allen, of New York City of counsel), for defendant in error.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This is an action at law to recover the sum of $40,000 upon three separate causes of action; the action being brought against the executors of Mrs. Frank Leslie, who died a widow and childless at the age of 78 years. The first cause of action alleged a promise made by the decedent to the plaintiff in 1902 to bequeath to her by her last will and testament a legacy in the sum of $50,000, whereas she left her no more than the sum of $10,000. The consideration for this promise it is alleged, was the performance of certain personal services as nurse and companion for Mrs. Leslie. The plaintiff, it is alleged, was the cousin german of the testatrix. The second cause of action alleged a promise, in consideration of the services aforesaid, to pay to the plaintiff the reasonable value of the said services, which was the sum of $50,000, no part of which the decedent paid except by a legacy of $10,000. The third cause of action was a promise, in consideration of the services aforesaid, to bequeath the plaintiff a sum equal to the reasonable value thereof, which was $50,000, whereas the decedent left the plaintiff only a legacy of $10,000.

This case has been in the Supreme Court of the United States, and appears in Ex parte Simons, 247 U.S. 231, 38 Sup.Ct. 497, 62 L.Ed. 1094. It was before the Supreme Court upon petition to that court for mandamus, or, if that should be denied, for prohibition or certiorari, to the District Court for the Southern District of New York. It appears that the District Judge, on motion of the defendants, ordered the first cause of action transferred to the equity side of the court and docketed as an equity cause, and to be stricken out of the complaint in the action at law, but only for the purpose of transfer, allowing the plaintiff to amend, etc. The ground disclosed was that by the law of New York the plaintiff could not sustain the first cause of action at law. The Supreme Court, in passing upon the application, said:

'We do not find sufficient ground for the opinion of the judge in the New York decisions. No doubt alleged contracts to make a provision by will must be approached with great caution in the matter of proof; but there is no doubt that, if proved, they are valid so far as no statute intervenes. So much seems to be assumed by the order of the judge, and is the law we believe of New York, as well as of other states and England. But, if valid, we see no reason why a contract to bequeath a certain sum should not give rise to an action for damages, if broken, as certainly as a contract to pay the same sum in the contractor's life, or at the moment of the contractor's death. * * * But we have seen nothing that suggests an arbitrary departure by the courts of New York from the common law in cases like the present. See Farmers' Loan & Trust Co. v. Mortimer, 219 N.Y. 290, 295; De Cicco v. Schweizer, 221 N.Y. 431; Silvester's Case, Popham, 148, 2 Roll.R. 104; Fenton v. Emblers, 3 Burr. 1279; Van Houten v. Van Houten, 89 N.J.Law, 301; Krell v. Codman, 154 Mass. 454.'

The Supreme Court therefore held that the order of the District Judge was wrong, in that it deprived the plaintiff of her right to a trial by jury. The mandamus was accordingly granted requiring the District Court to give the plaintiff her right to a trial at common law. The case accordingly came on for trial before a jury in the District Court in January, 1919, and the plaintiff introduced testimony to support her case and rested. The defendants introduced no testimony. The defendants then moved for the direction of a verdict and the dismissal of the complaint, and for a nonsuit on the ground that the plaintiff had failed to make out a cause of action, on the ground that there was no evidence that would authorize the jury to find a verdict in favor of the plaintiff on any of the three grounds of complaint; and the court directed the jury to return a verdict for the defendants upon all three causes of action. In accordance with the instructions so given the jury rendered a verdict for the defendants.

The case was then brought to this court upon writ of error, and our decision is in 262 F. 680. This court reversed the judgment, and held that the evidence was sufficient to require the submission of the issue to the jury. From that conclusion the present writer, who participated in the decision, dissented, as appears from the printed copies filed in the clerk's office, but did not write a separate opinion. Through a mistake when the opinion came to be officially printed, the fact of his dissent for some reason did not appear. But the ground of his dissent was that the evidence seemed insufficient to establish a legal claim for the legacy or to warrant the submission of the question to the jury. His associates, however, thought the evidence was sufficient to justify its submission to the jury upon the first cause of action. The court added that--

'No doubt it would be proper to instruct the jury as to the care and scrutiny with which they should weigh the testimony, in view of all the circumstances of the case, but in our opinion the question was for them.'

The case accordingly was tried again, and in March, 1921. This time it was submitted to the jury, and a verdict was rendered in favor of the plaintiff for $40,000, with interest. Judgment was accordingly entered in favor of plaintiff for $53,898.84. To sustain this judgment it must appear in the record that there was evidence from which the jury might find that Mrs. Leslie promised or agreed to bequeath to the plaintiff $50,000 in consideration of the performance by the latter of future services for the former. There is no direct evidence that any such promise was made. If there is any evidence on that subject, it is found in the testimony of the plaintiff's husband. His testimony was that he had a talk with his wife, in which she told him of a conversation which had occurred between Mrs. Leslie and herself, and that he then went to Mrs. Leslie and told her what his wife had told him as to the conversation she had had with Mrs. Leslie, and that he told Mrs. Leslie he was very glad and wished to thank her, because she meant to leave $50,000 to his wife. The following is an excerpt from his testimony on that subject:

'I know that Mrs. Leslie gave Mrs. Simons $10,000 by will, which she received. So far as I know, at that time there was no indebtedness of Mrs. Leslie; only that promise made. As I recall the language of what Mrs. Leslie said, I said, 'Florence, my wife tells me you expect to leave her $50,000 in your will, and I wish to thank you,' and her reply was, 'Robert, I am due Annie for what she has done for me, rendering many services in my present condition, and I intend to call on her in the future.' That is the language about as near as I can remember it.'

It is to be observed that this statement is not that the plaintiff represented that Mrs. Leslie had agreed or promised her that she would leave her $50,000 in her will, but only that she expected to leave her that amount, and that there was no statement showing that there was any consideration whatever therefor in anything the wife reported. And it is said that a recognition of a contract can be spelled out or inferred from what Mrs. Leslie replied to Simons when he informed her of what his wife had said. The fact is that Mrs. Leslie's comment did not refer one way or the other as to what she expected to do. But counsel continued:

'Q. And she said-- your language was, 'I am told you intend to leave $50,000 for Annie,' I think you said? A. 'I intend to leave in my will $50,000.'

'Q. What? A. 'I intend to leave in my will $50,000 to her;' yes.'

The witness had not so testified in this case until counsel put the words into his mouth. Then he said that Mrs. Leslie told him that she intended to leave $50,000 for Annie in her will. His subsequent examination, however, shows that he was putting his own construction or interpretation on her words throughout. When the case was here before, this court quoted the testimony of Simons as to what he said to Mrs. Leslie and what she replied to him:

'I said, 'Cousin Florence, my wife tells me that you are going to leave her $50,000 in your will, and I wish to thank you for it.' Her reply was, 'Robert, I am due Annie that money for what she has done in many services rendered to me in my present condition, and I intend to call on her in the future."

The court said:

'This testimony, if believed, was evidence that the decedent had admitted a conversation with the plaintiff as to her services rendered and to be rendered, and as to the compensation to be paid for them in the decedent's will. A jury might find it to be, not language of expectation or intention, but of agreement. The details necessary to establish a contract appear specifically; the consideration, the amount, and manner of compensation are all stated. The decedent, perhaps in not technical language, but substantially, stated to the witness the consideration, viz. that there was 'due' by her to Annie the sum of $50,000 for services rendered in the past and for which she was going to call in the future. These services had been and were subsequently rendered by the plaintiff.'

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