Humes v. Barron
| Decision Date | 26 May 1928 |
| Citation | 263 Mass. 583,161 N.E. 592 |
| Parties | HUMES v. BARRON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Richard W. Irwin, Judge.
Action by Nettie V. Humes against Samuel Barron, Jr., and others, as administrators of the estate of Philip Castleman, deceased. Verdict for defendants in part and for plaintiff in part, and, to an order refusing judgment for defendants, they bring exceptions. Exceptions overruled.
John W. Vaughan, of Boston, for plaintiff.
J. E. Hannigan, of Boston, for defendants.
This is an action of contract to recover from the defendants, as administrators of the estate of Philip Castleman, for services rendered to the decedent. The declaration was in three counts. The first alleges, in substance, that about July 1, 1914, the intestate, who was a physician, promised the plaintiff that, if she would take care of his rooms, answer the telephone, tend the door and receive his patients and friends, attend to his laundry, press and mend his clothes, furnish him meals when requested, and render other services which might be required by him up to the time of his decease, he would pay her at least $10,000 therefor; and that the plaintiff performed all the services required of her under the terms of the contract from about July 1, 1914, until April 1, 1924, when the intestate died as the result of an automobile accident. The second count alleges, in substance, that at the request of the decedent the plaintiff performed certain services, and that he promised to compensate her therefor; that, relying on said promise, she rendered said services and has not been paid for the same, and that the fair value thereof amounts to $12,687.50, which sum, with interest, is due her. The third count is upon an account annexed consisting of an item for services rendered the decedent from July 1, 1914, to March 31, 1924, at $25 per week and amounting to $12,687.50, and for interest. It thus appears that the first count is upon a special contract and the second and third are based upon a quantum meruit.
The jury found for the defendants on the first count and for the plaintiff on the second and third counts, and assessed damages in the sum of $2,350.67. Thereafter the judge, on motion of the defendants, refused, subject to their exception, to enter a verdict in their favor on the second count.
The only exceptions relied on by the defendants are to the refusal of the trial judge to order judgment in their favor. Their contention is that, as the jury found in their favor on the first count which alleged a special contract as matter of law the plaintiff could not recover on counts two or three. This contention cannot be sustained. If the plaintiff failed to establish the special contract declared on, she could recover upon the second and third counts if, in the opinion of the jury, the evidence warranted a recovery. Harrington v. Baker, 15 Gray, 538;Fitzgerald v....
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