In re Murphy's Estate

• Citation: 110 Colo. 304,134 P.2d 199
• Decision Date: 25 January 1943
• Docket Number: 15240.
• Parties: In re MURPHY'S ESTATE. v. LAWSON. O'BYRNE
• Court: Supreme Court of Colorado

134 P.2d 199

110 Colo. 304

In re MURPHY'S ESTATE.

O'BYRNE v. LAWSON.

No. 15240.

Supreme Court of Colorado, En Banc.

January 25, 1943

Rehearing Denied Feb. 15, 1943.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Proceeding in the matter of the estate of Tim Murphy, deceased, by Mary Lawson, claimant, against Con K. O'Byrne, executor, on a claim for nursing, washing, and general care of testator. The county court allowed the claim in part, and appeal was taken by the executor to the district court. The judgment was for claimant, and the executor brings error asking that the writ be made a supersedeas.

Affirmed.

Albert T. Frantz, of Denver, for plaintiff in error.

Neil Horan, of Denver, for defendant in error.

JACKSON Justice.

This case, involving the law of implied contracts, seems to be one of first impression in this court.

The action originated in the county court of the city and county of Denver where Mary Lawson filed a claim against the estate of Tim Murphy, deceased, for the sum of $895, the claim being supported by a bill of particulars which was itemized as follows 'Nursing, washing, general care of decedent, 179 days at $5.00 per day.' The claim was contested by the executor of the estate. Upon due trial, the county court allowed the claim in the amount of $800. The executor then appealed to the district court of the City and County of Denver, where, after argument and submission of the matter on briefs, judgment was rendered in favor of claimant for the full amount of her claim, $895. The executor brings the case here for review by writ of error, asking that the writ be made a supersedeas and operate accordingly. In compliance with his formal request, we have elected to determine the cause finally on the supersedeas application.

The evidence shows that decedent, Tim Murphy, had roomed and boarded at the home of claimant and her husband for a number of years at an agreed price of $40 per month for room, board and laundering his shirts and underwear; that in 1935 he left to reside elsewhere, subsequently became ill, and was taken to the Denver General Hospital for treatment; that after a month's stay in that institution he was ordered out and at his own request, was again removed to the home of claimant. There is evidence that on his return from the hospital he was in bed for a period approximating two months; that claimant nursed and cared for him during that time, and for this extra work she was rewarded with a payment of $50. In 1937 he began to fail in health and claimant at times had to nurse and care for him. Toward the end of 1938, at which time he was over 80 years of age, he spent most of his time in bed, had lost control of his functions and for the last six months of his life, which ended on June 10, 1939, had to be cared for in much the same way as would an infant.

Mrs. Lawson's claim is based on the services she rendered to decedent during this latter period as a practical nurse, and is supported by the testimony of three persons--the attending physician, claimant's sister who lived next door, and by that of a nephew of claimant's sister's husband who helped at times to take care of decedent. The testimony of a witness for the executor tended to minimize the serious condition of decedent during the last six months of his life. There was evidence that the decedent, after one of his vomiting spells, had stated that claimant would be paid for all the extra trouble she had been caused. The attending physician testified that he and claimant had tried to persuade decedent to go to a hospital, but that the latter refused to do so; that his condition was such in the last three or four months of his life that he required someone in attendance constantly. Neither claimant nor her husband were related to decedent.

We believe the evidence was ample to support the findings of the trial courts: that claimant had actually rendered the services upon which the claim was based and that the services were necessary in the proper care of decedent.

The executor resists the claim and argues that claimant is not entitled to recover at law, even assuming the foregoing facts to be true, on the ground that she was guilty of laches; that she had an express contract with decedent which had not been altered by any subsequent arrangement, and that any extra nursing the claimant did for decedent was merely gratuitous.

Counsel for the executor cites a number of Colorado cases, the great majority of which involve a situation where a claimant sued on an alleged express contract and had been unsuccessful in the trial court. In these cases we merely affirmed the findings of the respective trial courts, in conformity with the well established rule that where claimant seeks to recover from the estate of a decedent under an express contract clear and convincing proof is required. Hathaway v. Bottenfield, Administratrix, 73 Colo. 356, 215 P. 864; Fellhauer v. Fellhauer, 75 Colo. 358, 225 P. 844; Allen v. Sackett, Administrator, 76 Colo. 431, 231 P. 1110; Piggott v. Brown, Administrator, et al., 79 Colo. 11, 243 P. 626; Lambrecht v. Poudre Valley Nat. Bank, 83 Colo. 387, 265 P. 901; Goodrich v. Union Oil Co., 85 Colo. 218, 274 P. 935; McLean v. Jones, 90 Colo. 213, 8 P.2d 261; Ballou v. First Nat. Bank, 98 Colo. 101, 53 P.2d 592; Parker v. Hilliard, Adm'r, 106 Colo. 187, 102 P.2d 734; Larson v. Poudre Valley National Bank, Adm'r, 108 Colo. 58, 113 P.2d 686.

The foregoing cases, however, afford little assistance in the determination of our present problem because in the instant case the claim is founded on quantum meruit and the trial court allowed recovery, not on the basis of an express contract but on the ground that there was an implied contract to pay for the services rendered.

We have stated (Cody v. Raynaud, 1 Colo. 272) that 'a party may, for good cause and when the fault is not his own, abandon a special contract and recover the value of services upon an implied assumpsit. Lantry v. Parks, 8 Cow. [N.Y.] 63; McClure v. Secrist, 5 Ind. 31; Eldridge v. Rowe, 2 Gilman [Ill.] 91 .' In that case the express contract and the implied contract pertain to the same subject matter.

In the instant case the implied contract pertains to a subject matter quite distinct and different from that contained in the express contract. Although counsel for the executor lays stress on the fact that the express contract for room and board at $40 a month included the laundering we believe there is a sharp distinction we believe there is a sharp distriction between the weekly laundering of a boarder's clothing and the daily washing made necessary by a person in the helpless condition of decedent during the last few months of his life. As one witness testified 'the line was always full of washing night and day.' Certainly there is no evidence that the constant and continuous care and nursing was ever contemplated in the $40.00 a month contract for room and board.

We have in mind the general rule that 'there can be no implied contract where there is an express contract between the parties in reference to the same subject...