Evers v. Gilfoil

• Decision Date: 07 January 1924
• Citation: 247 Mass. 219,141 N.E. 926
• Parties: EVERS v. GILFOIL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 219

141 N.E. 926

EVERS

v.GILFOIL.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 7, 1924.

Exceptions from Superior Court, Middlesex County; Jos. Walsh, Judge.

Action of contract by Andrew F. Evers against Annie M. Gilfoil, administratrix of the estate of John F. Gilfoil, deceased. From exclusion of evidence, refusal to grant requests for rulings, and finding of court for plaintiff, defendant brings exceptions. Exceptions overruled.

C. H. Gilmore, of Boston, for plaintiff.

W. G. Moseley, of Boston, for defendant.

CROSBY, J.

On April 1, 1916, the plaintiff sold his furniture and house furnishings business to the defendant's intestate, John F. Gilfoil, who had been in the plaintiff's employ for many years. The purchase price was $24,000, secured by a mortgage upon the property so sold, and was payable at the rate of $400 a month.

At the time of the sale there was in the employ of the plaintiff one Dudley who had charge of the furniture department; his employment was under a written contract, entered into with the plaintiff several years previously, by the terms of which Dudley was to receive $40 a week for a certain number of years. On April 1, 1916, this contract had 64 weeks to run. When the sale of the business to Gilfoil was consummated, nothing was said by the parties about Dudley's contract; shortly afterwards, however, it was called to their attention by Dudley. The plaintiff testified, in substance, that he then had a conference with Gilfoil, and it was arranged that Dudley should be retained in the store during the remaineder of the term of the contract with the plaintiff; that in view of the monthly payments which Gilfoil was required to make on the purchase price, the plaintiff agreed that Gilfoil could deduct therefrom $40 a week, and later on he and Gilfoil would determine what Dudley's services were worth. He further testified that he had several talks with the defendant's intestate respecting Dudley's salary; that from time to time he told Gilfoil he was in no hurry for the money that had been deducted to pay the salary, that he did not need it; that he said, ‘You can have the use of the money and we will settle it at any time;’ that about a month or six weeks before his death the decedent told him he wanted to get out of the business; that if he could get a rest he thought he might get well; that he wanted to turn the business over to one O'Melia, ‘and wanted me to finance it and what money he owed me, both of Mr. Dudley's and myself, could be transferred to the other account.’

At the date of the death of the intestance, he had not paid the full amount of the purchase price; but it was admitted at the trial that all the payments due the plaintiff had been made, and that the only question at issue was that of the repayment of the amounts deducted by Gilfoil, with the approval, and by direction of the plaintiff, from the monthly payments of $400 due on the note. It appears that Dudley remained at work and was paid $40 a week for a period of 64 weeks; in July, 1917, the contract between him and the plaintiff having expired, he went away; later in the fall of that year he entered the employ of Gilfoil, performing substantially the same services as previously rendered, at a weekly salary of $30 a week, and this employment continued until Gilfoil's death.

[1][2][3] It is the contention of the defendant that as the parties never agreed as to how much Dudley's services were worth to Gilfoil, there was no binding contract. Where services are performed for another or other benefits are received by him with his knowledge, and there is no evidence that such benefits were conferred gratuitously, the...