Garr v. Cranney

• Decision Date: 10 December 1902
• Docket Number: 1396
• Court: Utah Supreme Court
• Parties: ELIZABETH ANN GARR, Respondent, v. A. E. CRANNEY, as Administrator of the Estate of JOHN T. GARR, Deceased, Appellant

70 P. 853

25 Utah 193

ELIZABETH ANN GARR, Respondent, v. A. E. CRANNEY, as Administrator of the Estate of JOHN T. GARR, Deceased, Appellant

No. 1396

Supreme Court of Utah

December 10, 1902

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

Action to recover a certain sum alleged to be due upon an implied contract for the furnishing of certain goods and also for certain services rendered by plaintiff to defendant's intestate. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED (with modified cost bill).

Frank K. Nebeker, Esq., for appellant.

It is a fundamental and generally recognized principle of pleading and practice that where the action is brought on the common count for work and labor, evidence of an express contract is inadmissible. "Where there has been a special contract as to both the nature and character of the services and the price to be paid, if the plaintiff rely upon the contract, he must declare on it and its breach specially, not on the common counts in assumpsit." 2 Enc. Pl. and Pr., p 1012, note; Tate v. Tarcautt, 58 N.W. 993; Andrews v. Hardin, 32 Mich. 324; Moore v Nason, 48 Mich. 300; Walker v. Bietry, 24 La. Ann. 349; Gill v. Vogler, 52 Md. 663; Wilder v. Colby, 134 Mass. 377; Phelps v. Hubbard, 59 Ill. 79.

The law is well settled that a person may not recover for mere courtesies extended to another--too well settled to require the citation of authorities. "There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated." 15 Am. Eng. Enc. of Law (2 Ed.), 1079; Collyer v. Collyer, 113 N.Y. 442; Doyle v. Trinity Church, 133 N.Y. 372; Force v. Haynes, 17 N.J.L. 385; Woods v. Ayres, 39 Mich. 345; Allen v. Bryson, 67 Iowa 591; Goode v. U.S., 55 Ct. C. 261.

And such is the rule even if the party performing the service subsequently changes his intention. Moore v. Moore, 3 Abb. App. Dec. 303; Hart v. Hart, 41 Mo. 441; Ayland v. Rice, 23 La. Ann. 75.

The rule remains the same where the services were performed with an expectation of reward by will or otherwise based upon the generosity of the recipient. Myles v. Myles, 6 Bush. (Ky.) 243; Tilghman v. Lewis, 8 La. Ann. 108; Brown v. Tuttle, 80 Me. 162; Collyer v. Collyer, 113 N.Y. 442; Houck v. Houck, 99 Pa. 552.

Where services are rendered, even upon request, by one person to another living in the family relation, as one household, such services are presumed to be gratuitous. 15 Am. Eng. Enc. of Law (2 Ed.), 1083-4; Cautine v. Phillips, 5 Harr. (Del.) 428; Hudson v. Hudson, 90 Ga. 581; Hill v. Hill, 121 Ind. 255; Van Sandt v. Cramer, 60 Iowa 424; Cowan v. Musgrave, 73 Iowa 384; Holmes v. Waldron, 85 Me. 312; Bixler and Sellman, 77 Md. 494; Gallagher v. Vought, 8 Hun (N.Y.) 327; Wilcox v. Wilcox, 48 Barb. (N.Y.) 327; Wilkes v. Cornelius, 21 Or. 341; Ellis v. Cary, 74 Wis. 176.

The rule applies equally to persons not related at all, provided, they live together as members of one family. 15 Am. Eng. Enc. of Law (2 Ed.), 1084; Windland v. Deeds, 44 Iowa 98; Copper v. Cooper, 147 Mass. 378; Ryan v. Lynch, 9 Mo.App. 18; Desbrow v. Durand, 54 N.J.L. 343; Doremus v. Lott, 49 Hun (N.Y.) 284.

George Q. Rich, Esq., for respondent.

We submit that there has been no proof of an express contract. The rule contended for by the appellant doubtless is that where the parties have mutually agreed upon certain terms and conditions in a contractual capacity, conditions which the law would otherwise imply, are in a measure at least merged into the express contract and should be so treated. The so-called express contract did not fix the value of the services, therefore, a recovery would have to be had, if at all, upon the reasonable value of the services. The testimony in regard to making the will should be considered simply as indicating that the services were intended not to be gratuitous. The agreement (if any) relied upon simply provided for the payment of a reasonable value in a certain manner that has not and can not be complied with.

ROLAPP, District Judge, delivered the opinion of the court. BASKIN and BARTCH, JJ., concur.

OPINION

ROLAPP, District Judge

STATEMENT OF FACTS.

Plaintiff sues defendant for the recovery of $ 1,200, alleged to be due upon an implied contract for the furnishing of certain goods and also for certain services rendered by plaintiff to defendant's intestate. The complaint alleges that "during all of the times between the twenty-eighth day of October, 1892, and the death of John T. Garr, on or about the thirty-first day of October, 1900, at Cache county, Utah the plaintiff, at the special instance and request of said deceased, performed and rendered to him her personal services in keeping his house cleanly and in order, including the making of his bed, patching, mending, and otherwise caring for his clothes and personal chattels, and in furnishing fuel and light for his room, and in nursing him, and in preparing for him occasionally at intervals during said period his meals, and furnishing the same, and in performing for said decedent during the whole of said period general duties as his housekeeper." Defendant, in his answer, denies the allegations of the complaint generally, but admits that during said period from the twenty-eighth day of October,1892, to the thirty-first day of October, 1900, plaintiff may have performed, in a few instances, slight and incidental services for said decedent, but defendant alleges that during the whole of said times said decedent permitted plaintiff and her family to occupy a house and lot owned by decedent, without any remuneration therefor, except such slight and incidental services as plaintiff during said times may have performed for decedent; that, if plaintiff performed any services for said decedent, she did not do so with the intention of charging therefor, but as partial remuneration for the use of said premises, and said decedent understood that plaintiff was not to be paid for any such services. Defendant also pleads the statute of limitations against so much of the cause of action as relates to the period between October 28, 1892, and October 31, 1896. The evidence introduced in the cause disclosed that plaintiff's deceased husband and defendant's intestate had been intimately associated for a number of years; the defendant's intestate, who was an old bachelor, having reared plaintiff's husband from the latter's early childhood. After the marriage of plaintiff and her husband, defendant's intestate requested them to "come and stop down to my place and take care of me." They complied with the request, and moved into a house belonging to decedent, and in which the latter occupied a single room, which room he still continued to occupy until his death, for sleeping purposes. At all times, both before and after plaintiff's removal, decedent regularly boarded at another place, where, also, the principal part of his washing and mending was done. Up to the death of defendant's intestate, plaintiff kept the house clean, made beds, kept fires, furnished him with fuel and light, furnished and prepared him occasional meals, and waited on him when he was ill. The house was occupied by plaintiff and her family rent free, and deceased also furnished some of the fuel; hauling willows and chopping them for the benefit of them all. Plaintiff had some thirty head of cattle, for which deceased furnished winter feed, while, upon the other hand, during part of the time deceased used plaintiff's ranch in the mountains, as well as receiving the increase of plaintiff's cattle. The lot belonging to the house was cultivated by deceased, but the products were used by plaintiff and her family. In March, 1896, plaintiff's husband died, leaving plaintiff and her four children in the occupation of the house; and shortly thereafter the deceased told plaintiff, in the presence of other parties, "that, if she would stay there with him and take care of him, he would pay her for all that she had ever done or would do for him." Plaintiff's brothers, who objected to the associates of decedent, protested against her staying, notwithstanding which, however, plaintiff remained with decedent until his death. The relations between deceased and plaintiff were very friendly; deceased seemingly being the head of the household, and plaintiff his housekeeper. It further appears in evidence that deceased at one time agreed to make a will in favor of plaintiff and her children. This, however, was not done. During the trial, plaintiff herself testified that while living with deceased she supported herself by selling produce, and that deceased knew how she supported herself. At the close of the trial, defendant requested the following instructions, which were refused: "The court instructs you that plaintiff can not recover in this action for any service performed by her for, or fuel or light furnished to, John T. Garr, deceased, between the twenty-eighth day of October, 1892, and the thirty-first day of October, 1896; and you are further instructed that you can not consider any such service, or such fuel or light, or the value thereof, in estimating the amount, if anything, to which the plaintiff is entitled in this action." "The court instructs you that if you find that John T. Garr, in his lifetime, promised to remunerate plaintiff for any service performed by her for him, and you further find that plaintiff performed services for said John T. Garr, but did so believing that said John T. Garr would make a will, and thereby provide remuneration for such services, and that plaintiff performed said services relying upon and with the hope of reward based upon such promise or agreement of said John T. Garr, your...