Brinton v. Van Cott

• Decision Date: 15 April 1893
• Citation: 8 Utah 480,33 P. 218
• Court: Utah Supreme Court
• Parties: MINNIE BRINTON, BY W. CHARLES PAVEY, HER GUARDIAN AD LITEM, APPELLANT, v. WALDEMAR VAN COTT, ADMINISTRATOR, RESPONDENT

33 P. 218

8 Utah 480

MINNIE BRINTON, BY W. CHARLES PAVEY, HER GUARDIAN AD LITEM, APPELLANT, v. WALDEMAR VAN COTT, ADMINISTRATOR, RESPONDENT

Supreme Court of Utah

April 15, 1893

APPEAL from a judgment upon demurrer of the district court of the third district. The opinion states the facts, except that so far as the abstract in the case showed, there was no judgment to appeal from, only an order sustaining the demurrer.

Order in sustaining the demurrer set aside with costs.

Messrs Brown and Henderson, for the appellant.

Mr Barlow Ferguson, and respondent in person, for the respondent.

MINER J. BLACKBURN, J., concurred. BARTCH, J., dissented.

OPINION

MINER, J.

Plaintiff alleges in her complaint that Lydia Davis died at Salt Lake City, January 27, 1890, possessed of certain real and personal property situated in Salt Lake county, Utah, and so far as material to this discussion further in substance alleges: That Lydia Davis had no relations closely allied to her and now living in this country. That she was a very old woman but in good health at the time of the contract, and was living alone and had no one to look after her, care for her, cherish her, or to be cherished and loved by her; that the plaintiff had formerly been with and remained with Lydia Davis at divers times, and she was well acquainted with the plaintiff; that about the 15th of October, 1889, Lydia Davis proposed to plaintiff--who was then a young girl of sixteen years--that if she would come and live with her and take care of her until the time of her death, she would leave all her property to the plaintiff, and her property should belong to the plaintiff at the time of her death. The same proposition was made by Lydia Davis to plaintiff's parents in her behalf; that after considering the matter the said offer was accepted by the plaintiff and she went and lived with Lydia Davis on the terms of the agreement so made and accepted, became a part of her family, worked for her, lived with her and did and performed everything that a daughter could do for said Lydia Davis while she lived.

That this agreement was entirely satisfactory to Lydia Davis and to the plaintiff. That plaintiff continued to perform whatever service the said Lydia Davis desired as long as she lived; that said Lydia Davis was taken sick in the fall of 1889, and plaintiff remained with her, attended and comforted her until she died; that all of said work was done upon the faith of the fulfillment of said promise and agreement.

That plaintiff is in possession of the house where she and said Lydia Davis lived. Wherefore this plaintiff prays judgment, that it may be decreed that she is entitled to the estate of said Lydia Davis, subject to the payment of other debts. That the said Elizabeth Wilson be entitled only to the household furniture in existence at the time of the execution of the said will; and that the claim of unknown or known heirs may be quieted by the decree of this court in pursuance of the statute in such cases made and provided; and that the said Waldemar Van Cott, administrator, may be required to recognize this plaintiff as entitled to all the residue of the said estate; and for such other and further relief as may be proper in the premises.

To this complaint the defendant files his demurrer and alleges that the same does not state facts sufficient to constitute a cause of action.

The court sustained the demurrer; the plaintiff duly excepted and appeals from the order sustaining the demurrer.

In this Territory the statute of frauds is in full force. 2 C. L. § 2831.

It is therefore incumbent upon the appellant to show by her complaint that she has partly or wholly performed her contract so as to take it out of the statute of frauds.

"When the consideration of the agreement consists in work, labor and services personally done and rendered by the plaintiff, if the value of the same can be ascertained with reasonable accuracy in an action at law, and adequately compensated by the recovery of damages, then neither the services themselves nor the payment for them will avail as a part performance of the verbal agreement. But if the services are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, then the plaintiff, after the performance of these services, could not be restored to the situation in which he was before, or be compensated by any recovery of legal damages."

Under these circumstances, the rendition of the services is a part of the performance of a verbal agreement. The act of part performance of a verbal agreement for services must be such that it would be a fraud upon the party performing for the other party to refuse to perform his part as agreed between them. Pomeroy on Contracts, § 114.

The case of Rhodes v. Rhodes, 3 Sandf. Ch. 279 will illustrate the rule.

"A person verbally agreed to convey a tract of land to his brother, in consideration that the latter should support nurse; and take care of him during his life time. He was subject to epileptic fits, and the brother faithfully performed the agreement on his part; nursed, maintained and took care of the invalid during the rest of his life, but did not take possession of the land or in any other way act affecting it directly. This contract was specifically enforced against the heirs of the vendor, the court holding that the services rendered by the plaintiff, or procured to be rendered were, under the circumstances, a part performance. The reasons for the decision are seen in the following extract:--'Payment of the consideration will not, in general, be deemed such a part performance as to relieve a parol contract from the operation of the statute. But the reason for this, viz., that in such case the repayment of the consideration will place the parties in the same situation in which they were before, shows that the rule applies to a moneyed consideration only. If the consideration of the contract be labor and services, those may be sometimes estimated and their value liquidated in money, so as to necessarily make the vendee whole on rescinding the contract. But in a case like this, where the services to be rendered were of such a peculiar character that it is impossible to estimate their value to the plaintiff by any pecuniary standard, and where it is evident that he did not intend to measure them by any such standard, it is out of the power of any court, after the performance of the services to restore the plaintiff to the situation in which he was before the...