Evers v. Gilfoil

• Decision Date: 02 January 1924
• Citation: 247 Mass. 219
• Parties: ANDREW F. EVERS v. ANNIE M. GILFOIL, administratrix.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 219

ANDREW F. EVERS v. ANNIE M. GILFOIL, administratrix.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1924

November 13, 1923.

Present: RUGG, C.

J., CROSBY, PIERCE & CARROLL, JJ.

Contract, What constitutes, Construction. Evidence, Relevancy and materiality.

A merchant sold his business to one who agreed to pay a certain purchase price at the rate of $400 per month. At the time of the sale, the merchant had in his employ one to whom under a contract in writing he had agreed to pay $40 per week. This contract had sixty-four weeks to run, the purchaser of the business continued to employ such employee, and the merchant and the purchaser made an agreement that from the payments of $400 per month there should be deducted the sum of $40 per week paid to the employee and that later the merchant and the purchaser would determine what the employee's services were worth. After the payment of the entire purchase price excepting the $40 per week deduction agreed upon, the purchaser died and the merchant brought an action against the administratrix of the purchaser's estate with a declaration in three counts, the first upon an express contract to repay the amounts deducted, $2,560, the second for that amount as money had and received by the defendant's intestate to the plaintiff's use, and the third upon an account annexed for that sum as work and labor performed, enumerating the services of the employee at the rate of $40 per week during the sixty-four weeks. A judge found generally for the plaintiff in the sum of $1,920 and interest. Held, that

(1) The evidence was ample to warrant a finding that the employee's services were accepted by the defendant's intestate with the intention that eventually they were to be paid for by him;

(2) The circumstance, that the defendant's intestate died before any agreement as to the value of the services of the employee had been arrived at, did not prevent recovery by the plaintiff on a quantum meruit;

(3) The agreement for reimbursement of the plaintiff was not void for indefiniteness or uncertainty by reason of the fact that the value of the employee's services was not agreed upon but was left for future determination;

(4) The law implied a promise that the defendant's intestate would pay to the plaintiff what was fair and just in the circumstances as the value to the defendant's intestate of the services of the employee;

(5) The contract having been fully executed on the part of the plaintiff by his consenting to the deducting of the $40 per week from the payments due on the purchase price, a finding was warranted that the defendant was bound to carry out the obligation assumed by the intestate to reimburse the plaintiff in a sum equal to the value of the employee's services to the intestate;

(6) Evidence was admissible, as bearing on the value of the employee's services to the intestate, that, the sixty-four weeks having expired in July and the employee having left the employ of the defendant's intestate for a period, he was employed by the defendant's intestate in the fall of that year at the rate of $30 per week;

(7) It was proper to exclude evidence tending to show a statement by the defendant's intestate, in a conversation shortly before his death relating to "how near he was through paying an the mortgage."

CONTRACT, with a declaration in three counts. Writ dated May 23, 1921. The first count of the declaration was upon an express contract setting out in detail the sale by the plaintiff to the defendant's intestate of a mercantile business for the sum of $24,000, payments to be made monthly at the rate of $400 each with interest at the rate of five per cent on unpaid balances; that at the time of the sale the plaintiff was employing in the business one Dudley at the weekly wage of $40; that after the sale it was agreed by the plaintiff and the defendant's intestate that Dudley should be retained as an employee in the business, that the plaintiff would allow the defendant's intestate to deduct from the monthly payments of $400 the sum of $40 per week which he the defendant's intestate, would pay Dudley, and that the defendant's intestate "thereupon promised and agreed with the plaintiff that he would repay him such part or all of said $40 per week thus paid to said Dudley as the services of said Dudley should be fairly and reasonably worth "that Dudley continued as an employee and the defendant's intestate during his employment deducted from the payments to the plaintiff the sum of $2,560. In this count the plaintiff further alleged that the services of Dudley were worth $40 per week and sought repayment of the sum of $2,560 and interest.

The second count of the declaration was for money had and received in accordance with the account annexed, the items of which were for the weekly payments of $40 to Dudley and amounted in all to the sum of $2,560. Interest in the amount of $430.93 was claimed under this count.

The third count was upon an account annexed "for work and labor performed," and the items of the account annexed were "services of Charles W. Dudley for sixty-four weeks from April 1, 1916, to July 7, 1917, at $40 per week, $2,560 and interest $430.93.

In the Superior Court, the action was heard by Walsh, J., without a jury. Material evidence is described in the opinion. The testimony as to a conversation between the defendant's intestate and his brother, referred to in the opinion, was as follows: The brother testified that he had numerous conversations with the defendant's intestate and that the defendant's intestate "never in any of the conversations I had with him ever mentioned he would owe Mr. Evers one cent as a reimbursement for Mr. Dudley's services;" that shortly before the death of the defendant's intestate he had a conversation relating to "how near" the defendant's intestate "was through paying on the mortgage." This conversation was excluded subject to exception by the defendant.

At the close of the evidence, the defendant asked for the following rulings:

"1. On the whole evidence as presented the plaintiff is not entitled to recover.

"2. On the evidence as presented in support of the first count in the declaration the plaintiff is not...