Clark v. Diefendorf

Decision Date10 July 1929
Citation109 Conn. 507,147 A. 33
CourtConnecticut Supreme Court

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Appeal by the plaintiffs Ryce L. Clark and others, from the doings of the commissioners on the estate of Annie K. Joslin deceased, appointed by the court of probate for the district of New Haven, in allowing a claim in favor of Allen Ross Diefendorf in the amount of $1,622.10, taken to the superior court in New Haven county and tried to the jury. Verdict and judgment for the claimant for $190.22, and claimant appeals. Error and new trial ordered.

Ordinarily where one requests another to furnish services in usual course of business, sufficient basis exists to render former liable for reasonable value.

George E. Beers and William L. Beers, both of New Haven, for appellant.

Charles A. Watrous and Fleming James, Jr., both of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.


The appellant is a physician. Annie K. Joslin died in New Haven, April 12, 1927, leaving a will in which she named him as executor. Thereafter he presented to himself as executor a bill amounting to $3,080.15 for professional services rendered the decedent beginning October 11, 1908, and continuing until her death. This bill was divided into three sections; the first included visits to him at his office from the time he began his charges until the end of the year 1913, for which he charged $5 each; from that time almost up to her death he charged at the rate of $250 a year; during her last illness he rendered services and incurred expenses amounting to $172.15. Acting in pursuance of the provisions of chapter 124 of the Public Acts of 1921, two legatees moved in the court of probate for the appointment of commissioners to hear and determine the claim, and these commissioners made a report in which they allowed it to the amount of $1,622.10. Thereupon the plaintiffs appealed to the superior court, where the matter was tried to a jury and a verdict rendered for the appellant to recover $190.22.

The appeal contains many assignments of error based upon the charge of the trial court or its failure to charge in certain respects. Many of these have to do with the instructions of the court as to the elements which it was necessary for the appellant to prove in order to establish a valid claim. Although he did claim that on one of the early calls made upon him by the decedent he had told her that his charge would be $5 a visit, he largely based his right to recover upon an implied contract upon her part arising out of the rendition of services to her at her request. Such an implied contract would arise if the appellant rendered services under an expectation that they were to be paid for, and if the decedent either intended to pay for them or they were rendered under such circumstances that she knew, or as a reasonable person should have known, that the appellant did expect payment. Weinhouse v. Cronin, 68 Conn. 250, 253, 36 A. 45; Gillette's Appeal, 82 Conn. 500, 502, 74 A. 762; Cheseboro v. Lockwood, 88 Conn. 219, 224, 91 A. 188; 2 Elliott, Contracts, § 1365; 3 Page, Contracts, § 1444.

Ordinarily, where one requests another to furnish articles or perform services in the usual course of the latter's business, a sufficient basis exists to render the former liable to the latter for their reasonable value. The basis of that liability is an inference that the person rendering the services expected to be paid for them and the other accepted them intending to pay for them. Ford Co. v. Dudley, 104 Conn. 519, 528, 133 A. 746. No doubt this inference may be regarded as a presumption of fact, and it is not rarely so called. Cotter v. Cotter, 82 Conn. 331, 332, 73 A. 903. This presumption has its origin in common experience, and it attaches to the bare fact of the request for the rendition of services in the usual course of one's business an implication as regards both parties of an expectation that payment is to be made for them; but the presumption is not itself evidence and operates merely to obviate the necessity of producing evidence in the particular situation before the court. Vincent v. Mutual Reserve Fund Life Assn., 77 Conn. 281, 288, 58 A. 963; Water Commissioners v. Robbins, 82 Conn. 623, 640, 74 A. 938; State v. Gargano, 99 Conn. 103, 108, 121 A. 657. As soon as facts are proven sufficient to raise an issue for the jury as to the actual existence of the elements necessary to establish an implied contract, the presumption loses all significance, though the fact of the request for the services and their rendition in the usual course of business remain in the case, to be considered with all the other relevant evidence in arriving at the ultimate conclusion. When this stage of the case is reached the plaintiff must then establish upon all the evidence the implied contract upon which he relies, and, if facts which would afford a reasonable basis for a conclusion that the necessary elements were not present are admitted or undisputed, no good purpose is served by charging a jury with reference to the presumption. Firszt v. Capital Park Realty Co., 98 Conn. 627, 644, 120 A. 300, 29 A.L.R. 17. Of course, if such facts are themselves in issue, a charge would be necessary that, if the jury finds them not to exist, the contract would be implied from the bare fact of the rendition of services by the plaintiff in the usual course of his business at the request of the defendant. Knapp v. Tidewater Coal Co., 85 Conn. 147, 156, 81 A. 1063. Even in such a case, reference to the presumption as such would tend to confuse rather than aid a jury, and a statement couched in some such language as that we have used would be preferable. Firszt v. Capital Park Realty Co., supra.

In the instant case it was undisputed that the appellant occupied a relationship to the decedent going beyond that of physician and patient; that he adivised her in regard to her financial affairs, the testamentary disposition of her property, and the like; that she made him executor of her will and gave him in it a substantial legacy " as a matter of appreciation for his many kindnesses," this legacy not to include proper allowances to him as executor; that she looked upon him as a good friend; that during the period of more than 18 years covered by his claim he never rendered her a bill for services; and that it was her habit to pay all her bills promptly. These facts in themselves, aside from other evidence disputed or reasonably disputable, are sufficient to raise issues as to the appellant's intent to charge and the decedent's expectation to pay for the services or her acceptance of them under such circumstances that she is chargeable with knowledge of his expectation of payment, if it were found to exist. The case was one therefore for submission to the jury to find whether the appellant had established the elements necessary to a recovery.

The trial court stated to the jury that ordinarily the law will imply a promise to pay for valuable services rendered to another upon the latter's request and thereby it might be regarded as having given, though informally, the appellant the benefit of such inference as might arise from those conceded facts. But the further charge of the court cannot be justified. When it first stated the rule of law it said that the implication arising from the request for services made by the decedent to the appellant would not arise unless it appeared that they were rendered under such circumstances as authorized the appellant to entertain a reasonable expectation that payment would be made and as fairly to justify the inference that the decedent " intended or ought to have intended" to make payment. Its use of the words " ought to have intended" can hardly be regarded as a proper equivalent of the correct test to apply that the circumstances were such as to apprise the decedent as a reasonable person that the appellant expected payment. But the most serious difficulty arises out of the fact that thereafter in the charge this test is entirely disregarded and the question, as regards the decedent, was made to turn upon the finding of an intent upon her part to pay for them. Thus the trial court said that this part of the case rested " upon the intention of the parties. That is, upon his part that the services were rendered with the expectation that they would be paid for and upon the part of...

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    ...Contracts (1957) §§ 18, 22; see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf, 109 Conn. 507, 510, 147 A. 33 (1929)." Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). "The manifestation of assent may be made wholly or partly by ......
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