Decatur v. Cooper

• Decision Date: 01 December 1931
• Citation: 157 A. 706
• Parties: DECATUR v. COOPER.
• Court: New Hampshire Supreme Court

157 A. 706

DECATUR

v. COOPER.

Supreme Court of New Hampshire. Strafford.

Dec. 1, 1931.

Transferred from Superior Court, Strafford County; Young, Judge.

Action by Florence E. Decatur against Burt R. Cooper, administrator c. t. a. of the estate of Frank I. Decatur. Verdict for defendant and case transferred upon plaintiff's and defendant's exceptions.

New trial.

Assumpsit for nursing and care of the defendant's testator. Trial by court and verdict for the defendant The court found the following facts: Frank I. Decatur died testate February 15, 1927, at the age of seventy-three, leaving three children, Ethel D. Ball, Arthur G. and Roland W. Decatur, the latter being the husband of the plaintiff.

"By an instrument in writing dated May 29, 1924, signed by Ethel and Arthur, they agreed that 'In consideration of our brother, Roland W. Decatur and wife going to Barrington and making a home for our father, Frank I. Decatur, we agree to make no claim upon the home property at Barrington after our father's death, if Roland W. Decatur still living there. It is understood that in the distribution of his estate, Roland W. Decatur shall have the home property including the land and all buildings at a valuation of $2,500.00 and if this amount represents more than one third of the estate, we will not ask Roland W. Decatur for any settlement on account of the excess allowance.' The plaintiff knew of this agreement, was present when it was signed, and she and her husband went to the decedent's home in Barrington April 1, 1924 and remained there until the father's death, and from then on until May, 1928.

"Frank I. Decatur was a cripple, with a deformed foot upon which he wore an iron support, and for several years before his death was afflicted with a sore which required frequent dressing. This he looked after himself as long as he was able. His general health at the time the plaintiff and her husband went to Barrington was very good, but as time went on his strength was gradually depleted, and he became subject to the infirmities of old age, grew feeble, and, during the last year of his life required much care and attention. The last few weeks he was confined to his bed, and the last week had a nurse, who was paid twenty-four dollars.

"During the absence of her husband and before the nurse came the plaintiff had the entire care of the decedent, in so far as he needed care, and at all times there devolved upon her the extra tasks and additional house work which always accompanies the presence of an aged and infirm person in the household, which, as a matter of course, became more onerous as his disability increased. Her services in these respects were valuable, and taken alone are fairly worth the amount set forth in the writ."

The decedent paid the plaintiff $5 per week during the entire period from the time she went to his house until he died, as board.

After the estate had been appraised the plaintiff's husband made an agreement with his brother and sister, whereby Ethel and Arthur were to give Roland a deed of the real estate, hold him harmless as to any expenses of administration, direct the administrator to pay him $400 in cash, cancel his notes amounting to $118, and allow him to keep certain silverware, dishes, etc., according to a division already made. These last-named articles were appraised at $18.

"This agreement was reduced to writing and consummated Mar. 6, 1928, when the deed and cancelled notes were delivered and $400 cash paid to Roland, and he signed a receipt in full satisfaction of all claims to the personal estate of Ms father.

"The plaintiff was fully informed with respect to the negotiations covering a period of eight or nine months which led up to this settlement but at no time suggested to either the administrator or Ethel or Arthur that she had, or intended to present, any claim or bill of any kind. Nor did Roland at any time state or intimate to them, or any of them, that his wife was intending to present a claim, although he knew that such was her intention when he completed his settlement Mar. 6, 1928. Her claim was presented four days later."

Probably Ethel and Arthur would not have agreed to the terms of the settlement if they had been aware that Roland's wife had a bill for services.

The court concluded as follows:

"It was her (the plaintiff's) duty to disclose an important fact which she must have known would have some influence in the settlement and by her failure to do so she is now estopped from prosecuting her claim. There is therefore a verdict for the defendant.

"If as a matter of law the circumstances hereinbefore set forth do not furnish the basis of an estoppel, the plaintiff should have judgment for the amount of her claim with interest."

The plaintiff excepted to the denial of her motion for a verdict as a matter of law and to the findings of the court.

"The defendant excepted to that part of the court's findings which reads as follows: 'if as a matter of law the circumstances hereinbefore set forth, do not furnish the basis of an estoppel, the plaintiff should have judgment for the amount of her claim, with interest,' claiming that upon the findings of fact there is no contract, express or implied, upon which to base such a conclusion."

The foregoing exceptions were transferred by Young, J.

Other facts appear in the opinion.

Hughes & Burns, of Dover (G. T. Hughes, of Dover, orally), for plaintiff.

Cooper & Hall and Conrad E. Snow, all of Rochester (B. R. Cooper, of Rochester, orally), for defendant.

BRANCH, J.

The plaintiff was denied a recovery in this case because the court found that she was estopped from prosecuting her claim. The defendant has consistently contended, however, that regardless of the question of estoppel her case is fatally defective because there is no evidence of any promise on the part of the testator to pay for the services that form the basis of her account. Since a decision in favor of the defendant upon this' point would dispose of the case, it will be considered first.

The action of assumpsit is to recover damages for the breach of the decedent's promise to pay. To authorize a verdict against his estate this promise must be found as a fact, "Such fact may be found from an express promise of payment or from facts and circumstances from which a mutual understanding that payment was to be made may be inferred." Elliot Hospital v. Turcotte, 79 N. H. 110, Ill, 105 A. 361.

There is no evidence of an express promise to pay in this case. The only testimony upon the subject is that of the plaintiff's husband, her only witness, who said that the deceased never promised to pay the plaintiff and that she never asked him to pay her.

As a basis for its conclusion that in the absence of an estoppel the plaintiff should have judgment for the full amount of her claim, the trial court probably had in mind the well-settled rule that "the rendition of valuable services by one to another, who knowingly receives the benefit of them, is evidence of a mutual understanding that they are to be paid for." Clark v. Sanborn, 68 N. H. 411, 412, 36 A. 14, 15; Elliot Hospital v. Turcotte, supra. It does not follow from this principle, however, that the establishment of these facts will in every case sustain a finding that the recipient of the services promised to pay for them. The mere fact that services have been rendered and a benefit received from the services so rendered does not establish a legal duty of payment Elliot Hospital v. Turcotte, supra.

The rule merely embodies the sensible conclusion of the court that in the absence of countervailing considerations human experience justifies the inference that the voluntary acceptance of valuable services indicates an intention to pay for them. When the relationship of the parties, however, affords evidence that payment was not contemplated or that the labor was gratuitously performed, the rule cannot apply because the reason for it fails. Page v. Page, 73 N. H. 305, 61 A. 356, 357, 6 Ann. Cas. 510. These considerations are exemplified in the equally well-settled rule that as between members of the same family the mere rendition and acceptance of valuable services will not justify the inference of a promise to pay. Page v. Page, supra; Bundy v. Hyde, 50 N. H. 116; Hall v. Hall, 44 N. H. 293; Seavey v. Seavey, 37 N. H. 125; Munger v. Munger, 33 N. H. 581. "The reason of this, exception to the ordinary rule is that the household family relationship is presumed to abound in reciprocal acts of kindness and good will, which tend to the mutual comfort and convenience of the members of the family, and are gratuitously performed." Disbrow v. Durand, 54 N. J. Law, 343, 345, 24 A. 545, 33 Am. St Rep. 678, quoted in Page v. Page, supra.

The defendant seeks to invoke the rule last stated, but we do not think that the plaintiff's claim can be defeated upon this ground as a matter of law. There is nothing in the evidence from which it could be found that the deceased knew about the contract which Roland and the plaintiff had made with Ethel and Arthur. Consequently the provisions of that agreement throw no light upon the testator's understanding of the terms upon which the plaintiff's services were rendered. All the parties agreed, however, that the testator paid the plaintiff $5 per week during the entire...