Elwell v. Roper

• Decision Date: 07 June 1904
• Citation: 58 A. 507,72 N.H. 585
• Parties: ELWELL v. ROPER et al.
• Court: New Hampshire Supreme Court

58 A. 507

72 N.H. 585

ELWELL

v. ROPER et al.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1904.

Transferred from Superior Court; Peaslee, Judge.

Proceeding by Carrie A. Elwell against Charles Roper and another, as executors of the estate of Elmira D. Whittemore, deceased, to collect a claim from the estate of testatrix. Verdict for plaintiff, and cause transferred on defendants' exceptions. Exceptions overruled.

Burnham, Brown, Jones & Warren, for plaintiff.

Harry E. Loveren and Oliver E. Branch, for defendants.

CHASE, J. 1. The alleged promise of the testatrix was that the plaintiff should be fully paid in the end for the extra services. The price for these services was not agreed upon. In such case the law implies that the promisor shall pay what the services are reasonably worth. The plaintiff's specification sufficiently sets forth the contract. This point was covered by the former decision, as also was that relating to the statute of limitations. Eiwell v. Roper, 72 N. H. 254, 56 Atl. 342.

2. The evidence offered by the defendants, that, after the plaintiff left the employ of the testatrix, the latter said she intended to give the plaintiff something more if she had stayed through the testatrix's lifetime, being hearsay, was properly excluded.

3. The evidence that the testatrix wore silk tea gowns and dresses that required a great deal of laundering had a tendency to prove the character and extent of the services rendered by the plaintiff, and was competent.

4. It does not appear that the entries upon the diaries of the deceased husband of the testatrix showing payments to the plaintiff, offered by the defendants, were competent evidence. This action is brought to recover compensation for extra services rendered under an independent contract, by which the testatrix employed the plaintiff, and promised to pay her for such services. According to the theory of the action, the plaintiff had two contracts, which were independent of each other—one by which she rendered the services of an ordinary domestic in the family of the testatrix and her husband, and the other the one in suit. She admitted that she had been paid in full for her services as a domestic. Evidence that she was employed to render such services by the husband, and was paid by him, would be wholly immaterial as to the issue in this action. It is not suggested that the evidence tended to prove that he paid her more than she would be entitled to for such services. Notwithstanding such employment and payment, the testatrix might employ the plaintiff to perform extra services, and legally bind herself and her estate to pay for them. Payments by the husband to the plaintiff would have no logical tendency to prove that the contract alleged in this action was not made, nor that the contract had been fulfilled, unless there was also evidence tending to show that the payments were made on account of the testatrix, and there was no such evidence, so far as appears.

5. Although the charge to the jury was not in the words of the defendants' request, it clearly and succinctly stated all the propositions of the request...