Emery v. Wheeler

• Decision Date: 02 December 1930
• Citation: 152 A. 624
• Parties: EMERY v. WHEELER.
• Court: Maine Supreme Court

152 A. 624

EMERY

v. WHEELER.

Supreme Judicial Court of Maine.

Dec. 2, 1930.

Exceptions from Superior Court, Cumberland County.

Action by Perley E. Emery against Otis N. Wheeler, as administrator of the estate of Ella F. Loveitt. On exceptions to refusal to direct a verdict for defendant, to the allowance of an amendment, and to instructions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and FARRINGTON, JJ.

Hinckley, Hinckley & Shesong, of Portland, for plaintiff.

Joseph E. F. Connolly, of Portland, for defendant.

STURGIS, J.

This action of assumpsit against the defendant as administrator of the estate of Ella F. Loveitt, late of South Portland, deceased, grows out of the plaintiff's claim for services rendered the intestate in her lifetime under an oral agreement that she would bequeath and devise to the plaintiff by will all property which she had at her decease.

The case comes forward on exceptions to the refusal of the presiding justice to direct a verdict for the defendant, to the allowance of an amendment by the addition of a new count, and to instructions given the jury.

It is well settled that a person may make a valid contract for the disposition of property by will to a particular person or for a particular purpose, and the contract will be enforceable. Brickley v. Leonard, 129 Me. 94, 149 A. 833; 28 R. C. L. 64; 40 Cyc. 1063. And where services are performed in pursuance of such a contract and the promisor fails to comply with the agreement, it may be enforced by bill in equity to impress and declare a trust if attending facts and circumstances disclose the requisite equity, Brickley v. Leonard, supra; or if recovery is not barred by the statute of frauds, an action at law will lie for damages for breach of the contract, Strakosch v. Conn. Trust & Safe Deposit Co., 96 Conn. 471, 114 A. 660; Thompson v. Romack, 174 Iowa, 155, 156 N. W. 310; Clarke v. Treasurer & Receiver General, 226 Mass. 301, 115 N. E. 416, L. R. A. 1917D, 800; Wellington v. Apthorp, 145 Mass. 69, 13 N. E. 10; Jenkins v. Stetson, 9 Allen (Mass.) 128, Ruch v. Ruch, 159 Mich. 231, 124 N. W. 52; Day v. Washburn, 76 N. H. 203, 81 A. 474; Andrews v. Brewster, 124 N. Y. 433, 26 N. E. 1034, Snyder v. McGill, 265 Pa. 122, 108 A. 4ivV or upon a quantum meruit for the reasonable value of the services rendered, Hudson v. Hudson, 87 Ga. 678, 13 S. E. 583, 27 Am. St. Rep. 270; Huntington's Appeal, 73 Conn. 582, 48 A. 766; Hensley v. Hilton, 191 Ind. 309, 131 N. E. 38; GInders v. Ginders, 21 Ill. App. 522; Bross v. Ramsay, 216 Ill. App. 312; Dixon v. Lamson, 242 Mass. 129, 136 N. E. 346; Canada v. Canada, 6 Cush. (Mass.) 15; Schwab v. Pierro, 43 Minn. 520, 46 N. W. 71; Howe v. Day, 58 N. H. 516; Collier v. Rutledge, 136 N. Y. 621, 32 N. E. 626; Moorhead v. Fry, 24 Pa. 37; Nelson v. Christensen, 169 Wis. 373, 172 N. W. 741. See Saunders v. Saunders, 90 Me. 284, 38 A. 172.

The case at bar went to trial on issue joined on the plaintiff's declaration in account annexed, the only item relied on being:

"To care and nursing of said Ella F. Loveitt from July 4, 1926, to January 6, 1929, 130y₂ weeks at $20.00, $2610."

The evidence adduced by the plaintiff tends to show that after the death of the intestate's husband, the plaintiff, who had long been a boarder in the family, continued to make his home with Mrs. Loveitt, then aged and a sufferer from frequent severe heart attacks. He carried much of the responsibility of the maintenance of the home, did most of the housework, ran the fires, and kept the grounds in order. He assisted her in walking in and out of the house, about the grounds, and to the neighbors. He took her to ride frequently in his automobile. Except as a woman's services were required at time of serious illness or for spring housecleaning, his was the only personal care and attention received by Mrs. Loveitt.

The plaintiff was barred from testifying in his own behalf. R. S. (1930) c. 96, § 119. Apparently disinterested neighbors, however, testify to the facts stated, and one or more say that Mrs. Loveitt, in the plaintiff's presence, told them in substance, if not in exact words, that for these services rendered by the plaintiff she was going to give him her property at' her death. One witness testifies that she stated that she had promised the plaintiff to give him by her will all property she had left at her decease.

The evidence introduced by the defendant does not sufficiently refute the plaintiff's case to bar a finding that services were rendered by the plaintiff under and pursuant to an agreement with the intestate substantially as claimed.

The original form of pleading adopted by the plaintiff, considered in the light of the evidence offered and the theory upon which the case was tried, indicates an election to seek recovery for the reasonable value of the plaintiff's services. The use of account annexed as a substitute for the common count of quantum meruit is unobjectionable. Lynch v. Stebbins, 127 Me. 203, 142 A. 735; Levee v. Mardin, 126 Me. 133, 136 A. 696; Cape Elizabeth v. Lombard, 70 Me. 396.

But the defendant raises the question of variance between pleading and proof. He contends that the services rendered by the plaintiff to the intestate were not "care and nursing." He makes further objection that the proof at the trial does not conform with the claim filed with the administrator as required by Revised Statutes (1930) c. 101, § 14. Kelley v. Forbes, 128 Me. 272, 147 A. 159.

A variance requires a real difference between allegation and proof. If the proof corresponds to the substance of the allegation, there is no variance, the test to be applied being the tendency of the evidence substantially to prove the allegation, not the literal identity of facts alleged and facts proven. 49 C. J. 807. "It is not indispensable to recovery that a party should make good his allegations to the letter." Sposedo v. Merriman, 111 Me. 530, 90 A. 387, 393. And it is now held that no variance between pleading and proof will be deemed material if the adverse party is not surprised or misled to his prejudice in maintaining his action or defense upon the merits. Charles v. Harriman, 121 Me. 484, 491, 118 A. 417; Sposedo v. Merriman, supra.

We think the plaintiff's proof substantially, if not literally, supports his allegation. "Care" is not a word of rigid and Inflexible meaning, but is one of broad comprehension admitting of a variation in its application to different persons and circumstances. It has no fixed and limited significance in law, Bless v. Blizzard, 86 Kan. 230, 120 P. 351; nor in its common use. An accepted definition is "responsibility, charge or oversight, watchful regard and attention." Hewey v. Insurance Co., 100 Me. 523, 528, 62 A. 600, 602-; Words and Phrases, Second Series,...