Dixon v. Lamson

• Decision Date: 28 June 1922
• Citation: 136 N.E. 346,242 Mass. 129
• Parties: DIXON v. LAMSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 129

136 N.E. 346

DIXON

v.LAMSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1922.

Exceptions from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Margaret Dixon against Fred M. Lamson and others, executors of Everett Miles Taylor. Verdict for plaintiff for $22,833.33, and defendants bring exceptions. Exceptions overruled.

The action was on an account annexed, and on quantum meruit for labor and services, and on an alleged agreement to pay plaintiff one-half of the promisor's estate, if plaintiff would stay with him and care for him during his lifetime. The case was referred to an auditor, who found that it was understood and agreed that the decedent would make a testamentary provision for plaintiff, but that the agreement was not in writing, and accordingly found for defendant. The case was then tried before a jury, which found in favor of plaintiff.Leon C. Guptill, Elbridge G. Davis, and Hugh D. McLellan, all of Boston, for plaintiff.

Bates, Nay, Abbott & Dane, Walter A. Dane, and Kendall A. Sanderson, all of Boston, for defendants.

CROSBY, J.

This is an action of contract brought to recover for personal services rendered from November 23, 1910, to September 2, 1918, to Everett Miles Taylor, the defendants' testator. The declaration contains three counts; the first is on an account annexed; the second is on a quantum meruit for labor performed and services rendered; the third sets up an express oral contract by which, in consideration that the plaintiff would remain with the testator and care for him and his household during his lifetime, he would pay her a sum equal to one half of his estate for her services. This count was waived at the trial. The defendants' answer contains a general denial, payment, and the statute of frauds.

The case was referred to an auditor who made certain findings of fact and ruled that the plaintiff was not entitled to recover. It was afterwards tried before a jury upon the auditor's report and certain documentary evidence and oral testimony set forth in the record, but the plaintiff called no witnesses other than those who testified at the hearings before the auditor. There was a finding for the plaintiff in the sum of $22,833.33.

The auditor found that at the time of the hearing before him the plaintiff was about 50 years of age; that the testator, who at the time of his death on September 2, 1918, was 79 years of age, was a retired dentist; that he died from bronchial pneumonia after a brief illness; that during the last 8 years of his life he was not in robust health and was subject to occasional attacks of bronchitis and acute indigestion and had a slight affection of the heart, but except at rare intervals was able to manage his property, which required considerable of his time and attention; that when the plaintiff began her employment for the testator, on or about November 5, 1910, his family consisted of his wife and himself; that the wife was about the same age as her husband, and was in poor health at that time and died on November 23, 1910; that when the plaintiff began her service she received as wages $3.50 per week and was paid weekly.

The auditor also found, and it is undisputed, that the plaintiff was faithful, competent and considerate in her care of Mrs. Taylor, and during the succeeding 8 years before his death the testator often spoke to his friends in terms of appreciation of the faithful care and attention which she had given to his wife and to himself.

Mrs. Taylor's estate amounted to about $155,000, and most of it was devised to her husband. His estate, according to the inventory, amounted to about $171,000, and practically all of it came from his wife, except such additions from unexpended income as he had been able to make during the 8 years that had elapsed since his wife's decease.

On March 22, 1911, the testator made his will, and on May 9, 1913, he executed a second codicil thereto, in which he gave to the plaintiff a legacy of $500 ‘in appreciation of the kindness and care by said legatee of my wife during her last illness.’

During the time of the plaintiff's service for the testator her wages were increased three times, as follows: To $4 per week on January 1, 1912, to $5 per week on August 25, 1912, and to $7 per week on December 25, 1916. On January 5, 1911, the plaintiff signed a receipt for $3.50, and from the date of this receipt to and including July 22, 1918, she signed receipts each week substantially identical in form with the first, and all of which were expressed to be in full of all demands to date. It also appears that after the testator's death there was due to her for wages and disbursements $166.65, which was paid by the executors and for which she signed a receipt; that she did not at that time refer to any other claim against the estate or contend that any promise had been made to her by Dr. Taylor for further remuneration.

The plaintiff testified on her direct examination that in the spring of 1911 the testator was injured by falling from a step-ladder; that a few days later he said to her, ‘I will see that you are well provided for, Margaret, if you will stay with me right along,’ and that she said she would stay with him; that some time later she had another talk with him, when he complained about being asked to make contributions, and said:

“Margaret, the more money you have the more trouble you have;' and then he said, ‘Well, if you will stay by me as long as I need you I will give you half of what I have;’ and I said, ‘Yes, I will;’ and that he said, ‘Good! good!’ twice.'

She further testified that she stayed and took care of him until he died.

The following question and answer were admitted subject to the defendant's exception:

‘Q. Whether or not you stayed there in reliance upon his promise to pay you, in addition to the sums called for in the receipts, such a sum as he promised to pay on the occasion that you promised to stay with him? A. Yes.’

We are of opinion that this question was competent. The exception to its admission must be overruled.

On cross-examination the plaintiff testified in substance that as a result of the conversations she had with the testator she understood all the time she was working for him that she was to have a substantial sum of money left to her in his will; that she was disappointed and angry when she found that $500 was given to her; ‘that she felt Dr. Taylor had broken a promise he had made by not leaving her more by his will;’ that he told her the amount of his property exceeded $155,000. She further testified that, while the word ‘will’ was never mentioned by him, she expected that he would provide for her what was promised after his death.

Dr. Williams, who had treated the testator professionally, testified in substance that the latter said to him in May, 1911:

‘I have made arrangements with Margaret by which she will stay with me as long as I live. I have made provision for her so that after I do not require her any longer she will not have to work,’ or words to that effect.

This witness further testified that Dr. Taylor made similar statements several times to him and that ‘once when plaintiff was away from home witness attended Dr. Taylor and told him that he was afraid Margaret wouldn't come back, and Dr. Taylor Said, ‘Oh, yes, Margaret will come back; we have a complete understanding that Margaret is to stay with me as long as I live;’' that this conversation took place on May 17, 1911. This witness further testified that on other occasions he had heard the testator say that he had arranged for the plaintiff's future, that she would never have to work after she left him, and that she would stay with him as long as he lived.

Mrs. Woods, a witness called by the plaintiff, testified that in the...