Gename v. Benson

• Decision Date: 31 October 1967
• Citation: 36 Wis.2d 370,153 N.W.2d 571
• Parties: Susan E. GENAME, Appellant, v. Ernst William BENSON, Respondent.
• Court: Wisconsin Supreme Court

Page 571

153 N.W.2d 571

36 Wis.2d 370

Susan E. GENAME, Appellant, v. Ernst William BENSON, Respondent.

Supreme Court of Wisconsin.

Oct. 31, 1967.

Rehearing Denied Dec. 22, 1967.

Donald MacKay, Sister, Bay, for appellant.

Stephan & Kirkegaard, Sturgeon Bay, for respondent.

WILKIE, Justice.

Contract to Make a Will.

The first issue raised on this appeal is whether or not there was a contract to make a will.

On November 7, 1963, the defendant, in his own hand, captioned a sheet of paper 'Last Will and Testament' and wrote in part:

'2nd I hereby will and bequeath (sic) to my good friend and neighbor Susan E. Gename if (she) survives (me) the house and land as it stands with all of the household furnishings and equipment including my automobile, to be hers absolutely.

'I do this in appreciation of the kindness and care that she has shown me.'

Plaintiff contends that this writing, though ineffective as a will due to want of execution, is a memorandum of an agreement between the parties to make a will. In other words, the plaintiff contends that this writing is a promise by the defendant to make a will which leaves his home, household furnishings, and automobile to the plaintiff. This document is not a contract. There are no words of promise. ¹ It is nothing more than an ineffective testamentary disposition. Four days later, on November 11, 1963, the defendant did in fact draft and execute a will in substantial conformity with the writing. This will would have operated to pass the property to the plaintiff if the had died while it was still effective. Therefore, even if the writing is construed as a promise, the defendant has fully performed. It is only contended that the defendant promised to make a will, not that he promised to make an irrevocable will.

Estate of Hoeppner ² and Estate of Rogers ³, cited by the plaintiff, are not in point. They were specific-performance actions wherein a party to a contract that called for the making of separate wills (which were mutual and reciprocal) had changed his will subsequent to the death of the other party. Here, we are not dealing with a joint-and-mutual-will situation and, even if we were, no will could pass any property in our situation because the testator is very much alive. Under the circumstances defendant's property was not impressed with a trust and the first part of the plaintiff's complaint is without merit.

Quantum Meruit.

The second issue raised on this appeal is whether the plaintiff is entitled to a recovery on quantum meruit for any part, or all of the period from November 11, 1963, to April 1, 1966.

The plaintiff claims to have worked for the defendant the following number of hours during this period (though she kept no supporting records):

8 hours a day from January 1, 1963, to May 30, 1965

6 hours a day from June 1, 1965, to December of 1965

4 hours a day from December of 1965 until April 1, 1966

Although plaintiff did state that in her opinion the reasonable value of her services was $2.50 an hour, nothing in the record points to the acceptance of this figure by the defendant, or establishes that this was the value of similar services in that area. It is not against the great weight and clear preponderance of the evidence for the trial court to find that:

'It would be just pure guess work from the present record to establish how many hours the plaintiff had worked for the defendant and just what she would be entitled to per hour for her work.'

Unquestionably, the plaintiff did render services to the defendant. The circumstances and the relationship of the parties are such that these services were not rendered gratuitously. Therefore, the general rule of a presumption of compensation is applicable. As stated in Estate of Voss, ⁴

'* * * in general if one accepts service from another which is valuable to him the presumption of fact arises that a compensation equivalent is to pass between the parties.'

Historically, quantum meruit was a common count in the action of assumpsit. Recovery in quantum meruit is allowed for services performed for another on the basis of a contract implied in law to pay the performer for what the services were reasonably worth. ⁵

However, before recovery can be permitted on quantum meruit there must be sufficient competent evidence in the record which shows that the services were performed at the instance of the person to be charged and that the performer expected reasonable compensation. ⁶ There can be no recovery in quantum meruit when a claimant has in fact already been compensated. Though the plaintiff in this case did perform her services at the initial request of the defendant and it is reasonably inferred that she intended to be compensated for her services, she has failed to establish a cause of action in quantum meruit. Her failure lies in the fact that she has already been justly compensated.

It is true that reimbursement for expenses is not compensation. ⁷ However, the evidence leads to the inescapable conclusion that Mrs. Gename was fully compensated, over and above any expenses, for her services to the defendant. It is undisputed that the plaintiff received $15 a week during the beginning of her relationship with the defendant and that this amount eventually mushroomed to $160 a month. Plaintiff testified that Benson was paying her '$90.00 or $125.00' a month during all of 1964, although she ...