Kellum v. Browning's Adm'r

Decision Date29 October 1929
Citation21 S.W.2d 459,231 Ky. 308
PartiesKELLUM v. BROWNING'S ADM'R et al.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Pendleton County.

Proceedings for the allowance of the claim of Emma F. Kellum against the estate of Lena Browning. From a judgment in favor of the administrator of the estate sustaining exceptions and denying the claim, claimant appeals. Reversed with directions.

John E Shepard, of Covington, for appellant.

Louis P. Fryer, of Butler, and Hoyt B. Best, and Swinford & Barker all of Falmouth, for appellees.


Mrs Lena Browning died in August, 1925, possessed of an estate of about $30,000. She bequeathed $3,000 to each of her four nieces and nephews, including the appellant, Mrs. Emma F. Kellum. A certain house and lot was devised to Georgetown College, at Georgetown, Ky. and the residue to the Baptist Church at Grayson, Ky. Mrs. Browning had no children, and her next of kin were Mrs. Kellum and the other nieces and nephews, her sisters, who resided at remote points.

Mrs. Kellum filed a claim with the administrator with the will annexed for $4,680 for nursing and care of the decedent and for furnishing her a room, fuel, laundry, etc., for a period of five years next preceding her death. This was allowed first by the administrator and then by the master commissioner, to whom the case was referred. The claimant filed a response to exceptions filed to the allowance, which was also denominated as an answer and cross-petition. It alleged an express contract to pay for the services, and stated that during all the time the claimant conducted a rooming and boarding house, furnishing accommodations for hire to those desiring them. The claim presented with this pleading covered a period of more than nine years and was on the basis of $25 a week, the aggregate being $12,000. She acknowledged payment of approximately $900.

Upon a trial before a jury on an issue out of chancery, at the close of evidence introduced in behalf of the claimant, the jury was peremptorily instructed to find for the estate. The court thereupon entered judgment sustaining the exceptions and denying the claim. From that judgment this appeal is prosecuted.

No election having been required as between the allegations of an implied and an express contract, the claimant had the right to rely upon both, or either contract, as she might be able to sustain. Dean's Ex'r v. Griffin, 217 Ky. 603, 290 S.W. 483.

So far as the claim for board is concerned, ever since the establishment of the commonwealth, and in Virginia before us as far back as 1663, the statutes have required an express contract for payment of compensation without regard to kinship. The same rule was early adopted by the courts for nursing, and other personal services where the relationship was such as to raise the presumption of gratuity or mutuality of benefit. The rule in this respect has been many times stated in substantially the same language. In Lucius' Adm'r v. Owens, 198 Ky. 114, 248 S.W. 495, 496, it is thus given: "So it appears the doctrine is well established in this jurisdiction that, where the relation of the parties is sufficient to raise the presumption that they live together as a matter of mutual convenience, or as members of the same family, no presumption will be raised by the law that one member, though sick, has promised or agreed to pay the other members of the family, or any one of them, for services rendered to the sick person. On the contrary, the presumption is that the services, being natural, were rendered without hope or expectation of pay, and before a recovery can be had an express contract must be proved; and to establish such a contract stricter proof is required than in a case of an ordinary contract. This rule applies not only to cases between parent and child, but between uncles and aunts on the one side, and nephews and nieces on the other, and between cousins and other near relatives."

There was no evidence in this case tending to prove a contract arising from a definite offer and a definite acceptance, the claimant resting her case on evidence of conditions, circumstances, and statements of the deceased recipient of the services shown to have been rendered. The court has before it, therefore, the duty of determining her right to a recovery, or rather her right to have had the case submitted to the jury, under such evidence.

There is a paucity of early cases of this character, which bears silent testimony to the traditional hospitality of Kentuckians. But the scarcity is fully made up in recent years, in which claims of this nature have been prolific of litigation. And while the principles of law have become pretty well established, there have crept into the opinions of the court what are apparently inharmonious and inconsistent expressions, but which are really but general statements or a confusion of terms. We have concluded, therefore, to review the law and consider the subject at some length in order to clarify the situation. Cases not involving the presumption of gratuity, however, are not included within the scope of the review.

The "Restatement of the Law of Contracts," by the American Law Institute, thus defines a contract (section 1): "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty."

We are not here concerned with a simple, formal promise and acceptance, clearly established from spoken or written words. And we pass for the present a consideration of contracts which arise by implication of law, that is, obligations created by law for reasons of equity and justice, which are generally denominated implied contracts, but which are more accurately designated as quasi contracts. Unlike true contracts, these are not based on the apparent intention of the parties to undertake the performance in question nor to promise anything. We are interested here in the law as it relates to a contract based on a promise which may be inferred from the conduct of the parties. As declared in section 5 of the Restatement above referred to, a promise in a contract may be inferred wholly or partly from such conduct as justifies the promisee in understanding that the promisor intended to make a promise. To constitute such a contract there must, of course, be a mutual assent by the parties-a meeting of minds-and also an intentional manifestation of such assent. Springfield Fire & Marine Ins. Co. v. Snowden, 173 Ky. 664, 191 S.W. 439. Such manifestation may consist wholly or partly of acts, other than written or spoken words. Section 21, "Restatement of Law of Contracts." Commenting on this declaration, that authority says: "Words are not the only medium of expression. Conduct may often convey as clearly as words a promise or an assent to a proposed promise, and where no particular requirement of form is made by the law a condition of the validity or enforceability of a contract, there is no distinction in the effect of a promise whether it is expressed (1) in writing, (2) orally, (3) in acts, or (4) partly in one of these ways and partly in others."

It is often difficult to determine whether the conduct of the parties as disclosed by the evidence is a manifestation of an agreement, promise, or understanding that (in this class of cases) compensation would be paid and accepted for services shown to have been rendered; that is to say, whether from the relation and operative acts of the parties the existence of a contract may logically and reasonably be inferred or implied. There is no difference in the legal effect of an express contract formally executed and of an inferred contract of this character, or, indeed, of a quasi contract. But there is a vast difference in the character and quantum of proof necessary to establish them. In establishing a contract by inference, the facts and circumstances must be sufficient to clearly and convincingly manifest or prove a mutual assent of minds to enter into the contract sought to be implied or established. In determining this sufficiency we frequently encounter conflicting presumptions. Thus, where one performs labor or services for another with his knowledge and assent and under circumstances which ordinarily call for payment, there is a presumption that the beneficiary intended payment and that there was an assent of minds as to this. On the other hand is the presumption of gratuitous service where there was a duty, moral obligation, or natural affection, or mutuality of benefit (Nicely v. Howard, 195 Ky. 327, 242 S.W. 602), by reason of which it has been often declared there can be no recovery under an implied contract. However, when these conflicting presumptions do arise, the latter presumption of gratuity is considered the stronger and is conclusive unless overcome by affirmative proof that there was an express contract. And the degree of the relationship may strengthen or diminish the presumption according to its proximity or remoteness.

But in determining that there was an express contract between the parties, no formal execution or memorial is necessary. In the development of the practice in this class of cases it was found that such a contract might be established, and the presumption of gratuity might be overcome, by proof that the services were actually rendered by the one party with the expectation of receiving compensation, and accepted by the other party with the intention to make compensation, although the amount was not agreed upon. The courts consistently and soundly reached the conclusion that compensation ought to be allowed under such circumstances; and, being confronted with the rule that it could not be allowed under an implied contract (more...

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