Greene v. Boston Safe Deposit Trust Co.

• Decision Date: 27 May 1926
• Citation: 152 N.E. 107,255 Mass. 519
• Parties: GREENE et al. v. BOSTON SAFE DEPOSIT trust co./ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 519

152 N.E. 107

GREENE et al.

v.BOSTON SAFE DEPOSIT trust co./ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1926.

Exceptions from Superior Court, Suffolk County; G. A. Flynn, Judge.

Action by contract by Annie L. Greene and another against the Boston Safe Deposit & Trust Company and others, executors of the will of Samuel G. Chickering. On plaintiffs' exceptions after verdict for defendants. Exceptions overruled.

J. K. Berry, of Boston (E. C. Upton, of Boston, of counsel), for plaintiffs.

E. F. McClennen, of Boston, for defendants.

SANDERSON, J.

This is an action of contract to recover from the defendants, as executors of the will of Samuel G. Chickering, on an oral contract to the effect that if the plaintiffs would stay with and care for the testator as long as he lived, he would see that they would be well taken care of and provided for during the remainder of their lives after his decease. The declaration also contained a count for labor and services in accordance with an account annexed. The answer is a general denial, payment, and that the alleged agreement was to make a will and was not in writing. The jury found for the defendants on the first count, and by direction of court returned a verdict for the defendants on the second count. The exceptions relate to the admission of evidence, to the refusal to direct a verdict for the plaintiffs, to the direction of a verdict for the defendants on the second count, to the refusal to give certain requests for rulings, and to portions of the charge. The exception to the refusal to direct a verdict for the plaintiffs has not been argued and is treated as waived.

The second count being for labor and services is a count on a quantum meruit. If there is a failure of consideration in a special contract for services the recovery is on quantum meruit. This occurs when the agreement is unenforceable because of the statute of frauds. Donovan v. Walsh, 238 Mass. 356, 130 N. E. 841;Riley v. Williams, 123 Mass. 506. The contract upon which the plaintiffs rely might be performed within one year and no contention that it cannot be so performed is made. Donovan v. Walsh, supra; Dixon v. Lamson, 242 Mass. 129, 137, 136 N. E. 346;Kelley v. Thompson, 181 Mass. 122, 124, 63 N. E. 332. The plaintiffs, having the right to recover on the contract if proved, cannot base their action on a quantum meruit. Dalton v. American Ammonia Co., 236 Mass. 105, 127 N. E. 504;Manilla v. Houghton, 154 Mass. 465, 28 N. E. 784;Craig v. French, 181 Mass. 282, 63 N. E. 893;Handy v. Bliss, 204 Mass. 513, 520, 90 N. E. 864,134 Am. St. Rep. 673. The court ruled without objection that there was no evidence of an agreement to make a will. The testimony tended to show that a contract substantially as stated in the declaration was entered into by an offer of the testator, made first in 1905, and in somewhat similar language repeated in later years, and accepted by the plaintiffs. It was not disputed that they had performed their part of the contract if one was made. The contention of the defendants was that if the agreement was made it had been performed by the testator.

In 1917 he put certain securities in the hands of the Boston Safe Deposit & Trust Company in trust, to pay the income to the plaintiffs and the survivor of them for life and to pay the principal to such persons as the survivor should by will appoint or in the absence of such appointment to the heirs of such survivor. This was changed in 1919 so as to provide that the principal should go to the Carney Hospital on the death of the survivor. The income of this trust was paid to the plaintiffs from the time the trust was created, yielding to each about $900 per year. There was evidence from which the jury could find that this was a fulfilment of the testator's obligations, but on the whole evidence the case was left to them to award such damages to the plaintiff as would fulfil the testator's obligation if they should find that the contract was made as alleged and was not fully performed by the trust agreement for their benefit.

[3][5][6][7] The plaintiffs received room and board and one of them was paid wages during the period of her stay with the testator. The contract relied upon, although having some elements of uncertainty, was sufficiently definite to be enforced. Its meaning depended upon the intention of the parties ascertained from the language used and the attendant circumstances. Noble v. Joseph Burnett Co., 208 Mass. 75, 94 N. E. 289;Silver v. Graves, 210 Mass. 26, 95 N. E. 948;Dixon v. Lamson, 242 Mass. 129, 137, 136 N. E. 346. Contracts should be so construed as to carry into effect the reasonable intention of the parties if that can be ascertained. Gilman v. Dwight, 13 Gray, 356, 74 Am. Dec. 634. The jury heard evidence of the manner in which the parties lived together, to aid them in deciding what they reasonably understood by the words ‘well taken care of and provided for.’ See Wall v. Williams & Robbins, 93 N. C. 327, 53 Am. Rep. 458. The judge rightly ruled, in substance, that the amount to be recovered was not to be based upon the nature or value of the services rendered, the time required to perform them, the spirit in which the work was done, the affectionate relations between the parties, or the adequacy of wages paid, but that it was solely a matter of contract; that the plaintiffs took their chances as to what the conditions of the service might be. To illustrate the significance of the evidence relating to the manner in which the...