Joseph S. Waterman & Sons, Inc. v. Hook

• Decision Date: 30 November 1923
• Citation: 141 N.E. 596,246 Mass. 522
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOSEPH S. WATERMAN & SONS, Inc., v. HOOK et al.

246 Mass. 522

141 N.E. 596

JOSEPH S. WATERMAN & SONS, Inc.,

v.HOOK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1923.

Exceptions from Superior Court, Suffolk County; J. F. Quinn, Judge.

Actions by Joseph S. Waterman & Sons, Inc., against Mabel F. Hook and against James Ballantyne, executor of the estate of Samuel H. Hook, deceased, respectively, to recover expense of funeral and burial. Verdict for defendant in the first action, and plaintiff brings exceptions. Exceptions overruled.

R. C. Van Amringe, of Boston, for plaintiff.

E. D. Hassan, of Boston, for defendants.

JENNEY, J.

The plaintiff's exceptions concern the contractual liability of a widow for the expense of the funeral and burial of her husband. The action was tried with one by the same plaintiff against the executor of the husband's will, where the plaintiff had a verdict for an amount somewhat less than the concededly reasonable charge, if liability of the defendant exists. The status of the action against the executor does not appear and no question is made as to the propriety of prosecuting this action after recovery of a verdict in the other. The fact of its existence and trial is pertinent only in the consideration of the rulings and instructions of the judge which necessarily related to both cases.

The facts that could have been found-and some parts of the testimony-are now given. On the day after her husband's death, and after the plaintiff's employee had prepared the body for burial, the defendant visited the plaintiff's warerooms, gave directions for the funeral and interment, and selected an expensive bronze casket, which was used in the burial. The articles selected and directions given for services need not be detailed. The charge therefor amounted to $1,829.49. If any contract was made, admittedly it was at this time. The person who was afterwards appointed executor had nothing to do with it. At that time the defendant had not conferred with the person named as executor, and did not know what she took under the will, although she had been told by her husband that he had provided her with a home, enough to take care of her, and also that in addition his property was sufficient to provide for his burial. The personal property of the deceased was valued at a little over $16,000, and his realty at $7,000. Not long before his death he had distributed some of his property and the defendant thereby received about $10,000. There was no evidence that this distribution was in anticipation of death. The salesman who acted for the plaintiff testified:

‘After completing the arrangements, I asked her if the bill was to be sent to her, and she said, ‘Yes.”

Being asked to restate what he had said, he answered:

‘After completing the arrangements * * * I asked her where the bill was to be sent, who it was to be sent to, and she said it was to be sent to her.’

He further testified that that was all that was said as to who was to pay. This was all the conversation material to the question of a direct promise to pay. The defendant testified that when she gave the order she did not think anything about who was to pay the bill, and the evidence given by a sister of the husband, who was with the defendant, was in substance that to the best of her recollection nothing was said as to who was to pay. This ‘excerpt from the plaintiff's records' was in evidence:

‘Funeral of Samuel H. Hook, March 13, 1922. Send bill to Mrs. Mabel F. Hook, 144 West Canton street, Boston, Mass.’

[1] The plaintiff's written motion for a directed verdict was denied and the first exception considered is to that ruling. Even if the case is decided on the basis that the facts are as stated, the action of the judge was right. The proper expense of a funeral is a preferred charge against the estate of a deceased person. G. L. c. 198, § 1. The credit of the estate may be pledged to a reasonable amount for the necessary purchase of a place of burial. Pettengill v. Abbott, 167 Mass. 307, 45 N. E. 748;Marple v. Morse, 180 Mass. 508, 62 N. E. 966.G. L. c. 206, § 14. The liability of the estate is one ‘on a promise implied by law and arising from the necessity of the case,’ and exists although resulting from action taken before the appointment of an executor. Durkin v. Langley, 167 Mass. 577, 578, 46 N. E. 119;Sweeney v. Muldoon, 139 Mass. 304, 31 N. E. 720,52 Am. Rep. 708. A stranger can count upon the obligation if justified in intermeddling. Sweeney v. Muldoon, supra; Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631,4 Am. St. Rep. 311;Hayes v. Gill, 226 Mass. 388, 115 N. E. 492.

The plaintiff's representative knew that there was a necessity for immediate action, and that what the widow reasonably did concerning his funeral charges would bind the estate of her husband. In the circumstances no presumption of law arose from the request for rendition and subsequent performance that the one who acted did so only on personal responsibility. There was no direct promise on which to found an obligation. The plaintiff's book did not name the defendant as debtor. No intent to assume personal responsibility appears other than by inference from the import of the plaintiff's acts and from the direction to send the bill. There was evidence admitted without objection that no such intention in fact existed, although that fact does not aid the defendant if, as a reasonable person, she should have understood that that was the expectation. Spencer v. Spencer, 181 Mass. 471, 63 N. E. 947. In cases like this the request to send the bill could be found to be consistent with the theory of liability of the estate as distinguished from that of the defendant. The defendant's words and acts did not require a finding of liability. Cases like Hunting v. Ward, 175 Mass. 223, 55 N. E. 1042, and Charron v. Day, 228 Mass. 305, 117 N. E. 347, while pertinent to an issue of fact on liability, do not aid the plaintiff in its present contention.

[5] One of the exceptions is because the judge instructed the jury that:

‘It isn't quite analogous to the case of a man going into a store, or entirely similar to it at least, and ordering a piece of goods and saying, ‘Send the bill to me.’ It is not a contract of that...