Duvall v. Birden

• Decision Date: 02 March 1938
• Citation: Duvall v. Birden, 124 Conn. 43, 198 A. 255 (Conn. 1938)
• Court: Connecticut Supreme Court
• Parties: DUVALL v. BIRDEN.

198 A. 255

124 Conn. 43

DUVALL v. BIRDEN.

Supreme Court of Errors of Connecticut.

March 2, 1938

Appeal from Superior Court, Litchfield County; Kenneth Wynne, Judge.

Action by Emma Duvall against Harold P. Birden, administrator of the estate of William A. Birden, deceased, to recover compensation for services rendered to the deceased.Verdict and judgment for plaintiff for $2,175, and defendant appeals.

Error and new trial ordered.

Case tried to the jury.

Joseph F. Berry and Olcott D. Smith, both of Hartford, for appellant.

Thomas J. Wall, Thomas F. Wall, and Robert A. Wall, all of Torrington, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BORWN Judge.

William A. Birden died intestate January 8, 1936, in his home in Torrington at the age of eighty-seven years, and the defendant, his son, is the duly qualified administrator of his estate.From May 11, 1910, until his death the plaintiff and her family had lived in the house with the decedent.She was in no way related to him.The plaintiff brought this action to recover for services of the claimed value of $2,500 rendered during the twenty-five years that she lived in his house.The defendant filed an answer denying all allegations supporting an agreement of any nature by the decedent to pay for the plaintiff's services, that any were rendered or were of value, and a counterclaim for rent of the premises.The jury rendered a verdict for the plaintiff to recover $2,175.The defendant's appeal is confined to claimed rrors by the court in charging the jury and in ruling upon evidence.

The Court charged as to the elements essential to a cause of action upon an express contract by the decedent to leave his farm to the plaintiff in return for her services, and further explained that if they found that there was such a contract and that the decedent had failed to leave the farm to the plaintiff by will as agreed, while under the law an action to specifically enforce it could not be maintained, the plaintiff would be entitled to recover the reasonable value of her services.Of this part of the charge the defendant makes no complaint.The court then continued that even though ‘ there was no agreement made on the part of Mr. Birden to leave the farm by will * * * to the plaintiff in return for her efforts, that nevertheless'she might recover therefor upon an implied contract upon proper proof offered.Several of the errors assigned relate to the court's language concerning this second ground of liability.The defendant contends that the plaintiff's claim failed with him as administrator and her complaint predicated thereon set forth as consideration for the services rendered a promise by his decedent to devise her a farm, with no allegation of either a promise by the decedent to pay or of expectation by the plaintiff to receive money for such services, and that therefore there can be no recovery upon quantum meruit as charged by the court.This part of the charge is not attacked as incorrect in its subject matter upon the issue of implied contract, but solely as submitting to the jury a cause of action not within the allegations of the complaint, and so one of which the defendant was not apprised by the pleadings.

In so far as the complaint itself is concerned, while it is true that two of its paragraphs to which the defendant directs attention do set forth the decedent's express agreement to devise the farm to the plaintiff, and her services performed in reliance thereon, they further allege that the decedent ‘ requested the plaintiff to care for him and assist him * * * in working his farm and to renovate his tenement houses * * *,’ and that ‘ in compliance with said request and in consideration of the promises above described, the plaintiff rendered services * * *.’The complaint goes on to allege the services to be reasonably worth $2,500, the plaintiff's claim filed in that amount for work done for the decedent, his failure to pay by will and her claim of $3,000 damages.These further allegations taken by themselves are therefore sufficient to support an action upon quantum meruit, either for services rendered at the decedent's request or under circumstances revealing the plaintiff's expectations to be paid therefor, with knowledge of which the decedent availed himself of the services, as well as one upon his express promise to pay for them by devising the farm.‘ The most that can be claimed is that the contract alleged was for an agreed price, and that the plaintiff did not prove the price so alleged to have been agreed upon; and the court rendered judgment for the reasonable value of the work and labor performed.This was not error.’Brewster v. Aldrich,70 Conn. 51, 53, 38 A. 894, 895.The lack of an allegation of the decedent's promise to pay and the plaintiff's expectation to receive money for the services, claimed by the defendant to be essential to an action on quantum meruit, amounts at most to no more than a failure to state the plaintiff's claim with the fullness and clarity desirable.Such a defect of form in the statement of her cause of action is not one which can be taken advantage of after issue joined and a trial of the case upon its merits.Woodbridge Ice Co. v. Semon Ice Cream Corp.,81 Conn. 479, 484, 71 A. 577;Johnson v. Shuford,91 Conn. 1, 4, 98 A. 333;Taylor v. Lounsbury-Soule Co.,106 Conn. 41, 49, 137 A. 159.

A further statement of the claim filed by the plaintiff supplementing her complaint, recited a promise by the decedent to give the plaintiff a home for life in return for her assistance on the farm, and the services rendered by her in pursuance of this agreement.This was elicited by a motion and order seeking to obtain particulars as to the nature of the items claimed by the plaintiff, as distinguished from a further statement of the basis of liability therefor.This aside, however, this further pleading cannot be interpreted as rendering inoperative the complaint's allegations above recited concerning the plaintiff's services rendered under circumstances raising an implied promise to pay.It afforded a notice to which the defendant was entitled, of the plaintiff's intent to try to prove an express agreement, but taken in connection with the complaint, did not preclude her claim of an implied contract should evidence insufficient to prove the express contract avail to establish one on quantum meruit.That counsel as well as court considered the question of liability upon quantum meruit to be in the case as pleaded, is demonstrated by the record.The finding shows that upon this issue the plaintiff's claims and offers of proof were, that her services performed for the decedent were valuable to him and were rendered under circumstances that would imply an agreement by him to pay therefor and the plaintiff's expectation to be reimbursed for them, and further that she had a right to collect therefor under quantum meruit, while those of the defendant were that whatever the plaintiff did was done without expectation of pay and because of a relationship between the parties which naturally included an exchange of favors between them.This negatives the defendant's contention that he was not apprised that the plaintiff was claiming to recover on an implied contract.The allegations contained in her pleadings were sufficient to warrant a verdict...