Brown v. Clark's Estate

• Decision Date: 01 December 1947
• Docket Number: 20924
• Citation: 207 S.W.2d 530
• Parties: BROWN v. CLARK'S ESTATE
• Court: Kansas Court of Appeals

207 S.W.2d 530

BROWN v. CLARK'S ESTATE

No. 20924

Court of Appeals of Missouri, Kansas City

December 1, 1947

Rufus Burrus, of Independence, Wayne Hire, of Blue Springs, and Harvey Burrus, of Independence, for appellant.

John D Strother, R. Bruce Noel and Richard B. Noel, all of Independence, for respondent.

OPINION

BOYER PER CURIAM

This case originated in probate court as a claim filed by Cora Brown, a double cousin of deceased, against the estate of William D. Clark, deceased, W. D. Warren, executor. Plaintiff prevailed and defendant appealed to the circuit court where plaintiff obtained a judgment in the sum of $ 5000, from which judgment this appeal is prosecuted.

The claim upon which the case was tried in both lower court is in words and figures, as follows:

'For cleaning house, canning fruits, furnishing food, cooking meals, waiting on and caring for William D. Clark and his sister, Kate Clark, rendered and performed for and at the instance and request of William D. Clark, from the ___ day of _____, 1910 to the 12th day of October 1933, the date of the said Kate Clark's death, a period of approximately twenty-three years; and for cleaning house, scrubbing floors, canning fruit, furnishing food, cooking meals and caring for William D. Clark from the 12th day of October, 1933, the date of the said Kate Clark's death, to the 22nd day of September 1944, the date of the death of the said William D. Clark, a period of more than ten years, all of which services were rendered and performed at the instance and request of the said William D. Clark, and for which services rendered and performed at the instance and request of the said William D. Clark, and for which said services the said William D. Clark promised and agreed to pay to the said Cora Brown the sum of Five Thousand and no/100 ($ 5000.00) Dollars, as his death, the same to be paid out of his estate.'

The record discloses that claimant's evidence tended to prove that she rendered to deceased services of the nature mentioned in the claim over a continuous period from 1910 until the death of deceased in September, 1944; that deceased repeatedly told her, and told other witnesses, in effect, that he intended to pay her; that she would be well paid for what she had done and was doing for him; that he would make provision for her in his will; that he would leave his farm to her; and that he made other statements regarding the matter to the same general effect. However, claimant offered no evidence whatever tending to prove a specific contract between her and deceased. Plaintiff states in her brief:

'In the instant case no effort was made to prove a specific contract, in fact, claimant by opening statement of her counsel in Probate Court abandoned it by stating to the court and jury that claimant would seek to recover the reasonable value of her services not to exceed $ 5,000.00, the amount mentioned in her claim. Abundant evidence was produced as to her services and decedent's promise to pay her for them. The case was submitted by the Probate Court to the jury on the theory of quantum meruit which returned a verdict for claimant.

'On appeal to the Circuit Court the same procedure was followed and the same result obtained.

'Nothing in claimant's demand or in the presentation of it to the Probate Court and then to the Circuit Court (which derived its jurisdiction from the Probate Court) was of such a nature to bar or divest either court of their respective jurisdictions to hear and determine the case as they did.'

Claimant's theory is that she was entitled to recover on the claim as filed on quantum meruit.

Defendant, as the close of the case, moved for a directed verdict, which motion was overruled. His theory is that the claim states a cause of action based upon an express contract; that plaintiff's evidence wholly failed to prove such a contract; and that the court should have directed a verdict for him because there was a fatal variance and departure from the claim as filed and that which the evidence tended to prove.

The claim in this case is based upon a specific contract, and this appears to be admitted by the statement in the brief quoted above. Plaintiff has pleaded in strictness and with particularity an express contract for the payment of a definite sum of money for the services rendered. 'The law has been definitely written in this state that in an action on an express contract a recovery cannot be had as on a quantum meruit.' Gillham v. Met. St. Ry. Co., 282 Mo. 118, loc. cit. 131, 221 S.W. 1. Cf. Whitworth v Monahan's Estate, Mo.App., 111 S.W.2d 931; Usona Mfg. Co. v. Shubert-Christy Corporation, Mo.App., 132 S.W.2d 1101, loc. cit. 1103. The settled rule of law as stated in the above cases is in accord with the general principle...