Kellum v. Browning's Administrator

Decision Date29 October 1929
Citation231 Ky. 308
PartiesKellum v. Browning's Administrator et al.
CourtSupreme Court of Kentucky

1. Executors and Administrators. Claimant filing claim with administrator for nursing and care of decedent and furnishing her abode could rely both upon allegations of implied and express contract, or either contract, as she might be able to sustain, where no election was required as between the two.

2. Executors and Administrators. — Where relationship of parties is such as to raise presumption of gratuity or mutuality of benefit, claims for furnishing board and nursing and other personal services against estate of decedent require proof of an express contract for payment of compensation without regard to kinship.

3. Executors and Administrators. — In absence of evidence tending to prove contract arose from definite offer and definite acceptance, court had duty of determining right of claimant on evidence, conditions, circumstances, and statements of deceased recipient of services relied on by claimant to recover or to have claim submitted to jury under evidence.

4. Contracts. — Promise in contract may be inferred wholly or partly from such conduct as justifies the promisee in understanding that promisor intended to make promise.

5. Contracts. — To constitute contract based on promise which may be inferred from conduct of parties, there must be mutual assent of parties, meeting of minds, and also manifestation of assent consisting wholly or partly of acts other than written or spoken words.

6. Contracts. — There is no difference in legal effect of an express contract formally executed and of an inferred contract based on promise which may be inferred from conduct or of quasi contract.

7. Contracts. — In establishing contract by inference, facts and circumstances must be sufficient to clearly and convincingly manifest or prove mutual assent of minds to enter into contract sought to be implied or established.

8. Executors and Administrators. — Where one performs labor or services for another with his knowledge and assent and under circumstances which ordinarily call for payment, there is presumption that the beneficiary intended payment, and that there was an assent of minds as to payment.

9. Executors and Administrators. — There is presumption of gratuitous services, where there was duty, moral obligation, natural affection, or mutuality of benefit in performance of services to another with his knowledge.

10. Executors and Administrators. — When conflicting presumptions that beneficiary, of services performed, intended payment and that services were gratuitous arise, presumption that services were gratuitous is stronger and is conclusive unless overcome by affirmative proof that there was an express contract.

11. Executors and Administrators. — Degree of relationship may strengthen or diminish presumption that services performed were gratuitous according to its proximity or remoteness.

12. Executors and Administrators. — Contract of beneficiary of services to pay for services rendered by another might be established, and presumption of gratuity overcome, by proof that services were actually rendered by one party with expectation of receiving compensation and accepted by other party to contract with intention to make compensation, though amount was not agreed upon.

13. Contracts. — In determining existence of contract based on promise inferred from conduct of parties, evidence must disclose purpose on part of promisor to assume legal obligation capable of being enforced against him.

14. Executors and Administrators. — To establish contract based on promise inferred from conduct of parties to pay for services, stricter proof is necessary than to establish ordinary contract requiring more than proof of casual indefinite expressions of intention to pay for them or acknowledgment of gratitude or dependence on part of recipient.

15. Executors and Administrators. — Degree of proof required to establish contract based on promise inferred from conduct to pay for services performed ought to be diminished as natural duties and obligations of parties concerned are lessened according to ordinary and common understanding of men.

16. Executors and Administrators. — In weighing evidence to establish contract based on promise inferred from conduct to pay for services, it is not essential that proof should show formal promise by one sought to be charged in order to create express contract, since any facts that would constitute or are equivalent to agreement are sufficient to establish express contract.

17. Contracts. — Implied contracts may be either implied in law or implied in fact.

18. Executors and Administrators. — Contract based on promise inferred from conduct to pay for services, called "contract implied in fact," requires an actual agreement or meeting of minds, although not expressed, and is implied or presumed from acts or circumstances which, according to ordinary course of dealing and common understanding of men, shows mutual intent to contract.

19. Executors and Administrators. — That niece, filing claim against estate of deceased woman for nursing and caring for deceased for several years before her death and furnishing her an abode, received at intervals from deceased small amounts evidenced by checks, and niece during time concerned was conducting rooming and boarding house, were facts showing that parties had entered into an agreement respecting them, although there was no evidence of an express offer and definite acceptance.

20. Contracts. — Term "contract implied by law" is applied to class of obligations created by law without regard to assent of parties upon whom obligation is imposed, and is one which is not contract obligation in true sense but quasi contract, constructively imported by law, as where one has received money or its equivalent under such circumstances that in equity and in good conscience he ought not to retain it, in which case owner may recover in action in form ex contractu.

21. Executors and Administrators. — Where presumption of gratuity either by reason of statute or judicial rule does not apply to services rendered another, law imports an implied and enforceable contract to take place of omitted express contract and imposes obligation to compensate for services rendered by one not bound to render them.

22. Executors and Administrators. — In construing and applying Ky. Stats., sec. 2178, requiring that no recovery for board may be allowed to one not making an agreement for compensation therefor, no particular form of agreement or contract is required; it being sufficient if evidence shows contract implied in fact to pay.

23. Executors and Administrators. — When beneficiary of services was incapable of entering into an agreement to make compensation therefor, contract either express or implied in fact is not required to recover compensation under Ky. Stats., sec. 2178, requiring that no recovery for board be allowed one not making agreement for compensation.

24. Executors and Administrators. — Recovery may be had by near relative on contract implied in law where services performed were not personal to decedent, such as washing or mending, or making clothes and other similar nonpersonal services, exclusive of board and nursing.

25. Executors and Administrators. — Compensation may be recovered by near relative under contract implied in law for services rendered decedent of extraordinary and menial nature, not regarded as household work, appertaining to domestic duties which cover extended period of time.

26. Executors and Administrators. — That decedent to whom claimant gave services of nursing and care and furnished abode owned substantial estate and verbally expressed that she was paying her way, and she was in crippled condition and was related to claimant as aunt, and fact that she from time to time made payments for board, held sufficient to take case to jury on both claim for board and nursing on theory of contract implied in fact; that is, on issue as to existence of express contract.

27. Contracts. — General rule which denies recovery on contract implied in law ought not to be applied where claims arise out of commercial relationships.

28. Executors and Administrators. — Where niece filing claim against estate of deceased aunt had cared for, nursed, and furnished aunt abode in rooming and boarding house for several years while aunt was in crippled condition and had received small checks from time to time, there was no presumption of gratuity raised, since all benefit inured to decedent and since general rule denying recovery on contract implied in law because of presumption arising from kinship is modified by Ky. Stats., secs. 2178, 2179, 2179a1, requiring no recovery for board be allowed to one not making agreement therefor except innkeeper, and creating lien for innkeeper on personal property of person receiving board, nursing, care or attention.

29. Executors and Administrators. Ky. Stats., secs. 2178, 2179, 2179a1, giving lien to secure compensation for nursing and care for one receiving in boarding house even though there be no stipulated sum agreed upon, held to give keeper of boarding house right to recover for services without previous agreement requiring that it be construed as destroying presumption of gratuity and modifying general rule where relation of landlord and boarder or of innkeeper and guest exists.

30. Executors and Administrators. — Where there was an issue raised by pleadings as to whether or not niece filing claim against estate of deceased aunt for furnishing her nursing, care, and abode was conducting rooming and boarding house during all of time, if both affirmative and negative evidence should be introduced, issue should be submitted to jury, and no recovery be authorized on contract implied in law unless jury believed she was engaged in business.

31. Executors and Administrators. — Burden...

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