Gange v. Gange

• Decision Date: 13 January 1953
• Docket Number: No. 7321,7321
• Parties: GANGE et ux. v. GANGE et al.
• Court: North Dakota Supreme Court

Page 688

56 N.W.2d 688

79 N.D. 372

GANGE et ux. v. GANGE et al.

No. 7321.

Supreme Court of North Dakota.

Jan. 13, 1953.

Syllabus by the Court.

1. Where a son and his wife seek to recover from the estate of the deceased father for services rendered to the deceased while he was living as a member of the son's household and there appears to have been no express agreement that the father was to pay therefor, recovery, if any, must be had on the basis of implied contract and whether facts exist which warrant the determination that such a contract was created is a question to be decided by the trier of facts.

2. In an action upon an implied contract to recover for services alleged to have been performed by a son and his wife for a deceased father while living as a member of the son's household where it is claimed that the services were of such an extraordinary, peculiar, or menial character as to overcome the presumption of gratuitousness, the matter of the value of such services is outside of the field of general knowledge of the jury and a verdict therefor cannot stand unless it is supported by the testimony of witnesses or other evidence.

3. In an action to recover for personal services, the party rendering the services, if otherwise competent as a witness, may testify as to his opinion of their value.

4. A party seeking to recover from the estate of a decedent for services rendered to the decedent during his lifetime should be permitted to testify to the value of such services, provided that their nature and the fact of their rendition has been first established by competent evidence.

Johnson & Rausch, Bismarck, for appellants.

W. R. Spaulding, Towner, and Roland A. Heringer, Rugby, for respondents

MORRIS, Chief Justice.

This is an appeal from an order of the District Court of McHenry County granting a motion of the respondents for a new trial. The matter involves the payment of a claim against the estate of Karl Gange, who died January 15, 1949. The claimants and appellants are a son of the deceased and his wife who filed a claim for care and support of the deceased from May 1941 to June 1948 at the rate of $50 per month, amounting to $4,200. The county court allowed the claimants $400. The claimants then appealed to the District Court of McHenry County where the matter was tried before a jury and a verdict was rendered in favor of the claimants for $3,700. The respondents in this appeal then moved for a judgment notwithstanding the verdict or in the alternative for a new trial, which was granted. The chief reason for granting the new trial, as disclosed by the court's memorandum opinion, was that the claimants failed to prove the value of the services which they claimed to have rendered.

In the spring of 1941, Karl Gange, then about seventy-six years of age, was a widower living alone in his house in Karlsruhe. He sold the house to his son, reserving therein a room for his own use. From then until about the time of his death in January 1949 the son and his wife, claimants therein, furnished Karl Gange care, shelter, and sustenance. In 1947 Karl Gange suffered a stroke and in the spring of 1948 he was placed under legal guardianship. The claim in this case covers the period from May 1941 to June 1948. From June 1948 to his death, his care was paid for through the guardianship proceedings. Apparently the stroke did not result in the complete disability of the deceased, for he was still able to get about and went down town frequently up to the time of his death. There is considerable evidence to the effect that the deceased, particularly during the last two years of his life, was very difficult to care for, was addicted to the excessive use of intoxicating liquor, frequently soiled his clothing, and otherwise rendered his surroundings unpleasant and offensive to those about him. The evidence discloses no express agreement that the son and his wife were to receive pay for the services rendered to the deceased. Rocovery, if any, must under the state of this record be on the basis of implied contract. Whether facts exist which warrant such an implication is a question to be determined by the trier of facts.

Brady v. Brady's Estate, 50 N.D. 114, 194 N.W. 938, 941, was an action by a daughter against the administrator of her deceased mother to recover upon an implied contract for services rendered to the mother during her last years and last illness. From that case we take these pertinent quotations:

'the claimant does not establish a cause of action by proving that the services were, in fact, rendered, and their reasonable value, but must rebut the presumption of gratuitousness--which is one of fact--by competent evidence. * * * The source of the obligation, whether the contract be express or implied, is the intention of the parties; the essential difference between an express and an implied contract is not of the substance, but lies in the form of the proof; the former is proved by direct, the latter by circumstantial, evidence. In the case at bar, therefore, the verdict for the plaintiff should not be disturbed if there is substantial evidence in the record from which the jury could find, under all the circumstances of the case, that it was the intention and understanding of the decedent and her daughter that she should be paid for her services; and it is not necessary that such understanding should be expressed in words, but it may be inferred from all the circumstances, the nature of the services, the conduct, and the relations of the parties.'

In that case it was held that the services were not of such an extraordinary, peculiar, or menial character as to justify the jury in finding that there was an understanding between the mother and daughter that compensation should be made. The jury had rendered a verdict for the plaintiff and this court ordered a new trial. In stating and applying the law in that case, these former decisions were considered and relied upon: Krapp v. Krapp, 47 N.D. 308, 181 N.W. 950; Bergerson v. Mattern, 41 N.D. 404, 170 N.W. 877. The law in most jurisdictions is extensively covered in an annotation to be found in 7 A.L.R.2d 8. Our cases are in accord with general authority.

The trial court granted the defendants' motion for a new trial upon the ground that the plaintiffs failed to prove the value of the services which they allege were performed for the deceased and for which they now seek recovery. After explaining why such evidence was omitted, the appellants argue that the jury, having heard the testimony regarding the extent and nature of the services performed by the plaintiffs and having a knowledge and understanding of the value of such services, could determine the value and base a verdict thereon, which they did. The trial court is clearly correct in determining that there was no evidence placed before the jury by which it could measure the value of the services. Was that value a fact so commonly and generally known that we must assume it to be within the knowledge of every member of the jury? The appellants, in order to avoid the impact of the presumption of gratuitousness arising from the relationship between the appellants and the deceased, take a position wholly inconsistent with their argument that knowledge of the worth of these services was common to all. If the services rendered were so extraordinary as to avoid the presumption, it would seem that they were also so extraordinary that they did not fall within the general knowledge and experience of members of the jury. In pointing this out, however, we do not intend to imply that either the court or jury may determine the value of personal services such as those involved in this case without there being presented some evidence by which the value could be measured. As a general rule, courts will not take judicial notice of the value of personal services in actions to recover the value thereof. 20 Am.Jur., Evidence, Section 121; Jones, Commentaries on Evidence, Second Edition, Section 426.

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