Lawrence v. Stewart, 1021.
| Decision Date | 01 February 1938 |
| Docket Number | No. 1021.,1021. |
| Citation | 196 A. 750 |
| Parties | LAWRENCE v. STEWART. |
| Court | Vermont Supreme Court |
Exceptions from Rutland County Court; John S. Buttles, Judge.
Assumpsit on the common counts by Theresa S. Lawrence against John W. Stewart to recover for the board and care of the mother of the parties. Judgment on a verdict ordered for defendant, and plaintiff brings exceptions.
Reversed and cause remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, and SHERBURNE, JJ.
Novak & Bloomer, of Rutland, for plaintiff. Finn & Monti, of Barre, for defendant.
This suit is brought to recover for the board and care of Bridget Stewart, the aged mother of the parties hereto. The complaint is the common counts in assumpsit. The answer is a general denial, and a special answer setting forth the establishment of the "fund" hereinafter described; admitting a contract with the plaintiff to keep and care for Bridget, the pay for which service was to come from the interest on said "fund," which contract was to continue for a period of 3 months, only; alleging the payment in full for that period; admitting that the plaintiff continued to keep and care for Bridget after the expiration of said period, but asserting that this was without any contract between the parties; alleging that during the continuance of said service, he paid the plaintiff various sums on account thereof voluntarily and without obligation; alleging that on June 22, 1934, he notified the plaintiff that he had arranged with their brother, Patrick, to support and care for Bridget, and that he would no longer be responsible therefor to the plaintiff; and averring that there remained in the "fund," after deducting the $650 hereinafter described, and other sums that he had paid out for his mother, the sum of $960.79, as of August 3, 1936.
This special answer was met by a general denial. The trial below was by jury, and, at the close of the evidence, a verdict was ordered for the defendant. The plaintiff excepted.
Two questions stand for our determination: (1) Did the evidence, construed in the light most favorable to the plaintiff, fairly and reasonably tend to establish facts sufficient to warrant a recovery? (2) Does the provision of the statute of frauds relating to contracts not to be performed within 1 year preclude a recovery on the contract here involved, which contract was not in writing?
The evidence was sharply conflicting, and that of each of the parties was more or less uncertain and contradictory. But construed as above, it would justify a jury in finding the facts hereinafter recited.
Sometime in the year 1932, Bridget met with an accident which left her with a broken leg. The defendant arranged with his sister, Winnie, to take care of their mother. And though this contract called for a payment of only $15 per week, the defendant actually paid Winnie $20 per week for her services. This money all came out of his own pocket. The plaintiff knew about this, for the defendant wrote her all about it in his letter of August 4, 1933, which was before the plaintiff began to keep and care for Bridget under the contract here sued upon.
Just prior to July 31, 1933, Bridget had been making her home with her son, Patrick, in Mt. Holly, and was being cared for without charge. Patrick's wife, Anna, was worn with the strain, and asked to be relieved for a time. On the date last mentioned, the plaintiff wrote the defendant offering to take and care for their mother if he would pay her $10 per week. To this letter the defendant replied, expressing satisfaction with the price named, and informing the plaintiff that there was then due $65 of interest on the "fund," and that he would pay the next installment of interest, $65, in advance; that she could have this, which would cover 13 weeks at $10 per week; and that at the end of that time, perhaps Anna would take Bridget back. There was no direct and express promise in this letter to pay, either from the defendant's own money or from the interest on the "fund"; but the plaintiff was fully justified in understanding that she was to receive from the defendant, for the care of Bridget, $10 per week for at least 13 weeks. Thereupon, on August 7, 1933, the plaintiff, with her brothers, James and William, went to Mt. Holly, and brought Bridget to the plaintiff's house in Cuttingsville, where she has since received adequate and satisfactory care at the hands of the plaintiff. At that time, Bridget was 83 years of age, nearly, if not totally blind, much enfeebled in body, and mentally incompetent even to give her consent to the use of her own money for her own care.
The plaintiff kept and cared for her, charging $10 per week, for 56 weeks, for which service she has been paid by the defendant $545.
The 13 weeks spoken of in the defendant's letter referred to above expired November 6, 1933. For this period, the defendant paid the plaintiff $130 as follows: On August 14, 1933, $35; on September 6, 1933, $30; on November 1, 1933, $30; on December 18, 1933, $35. These payments were made by the defendant's personal checks drawn on a Barre bank. With each of them, the defendant inclosed a receipt for the plaintiff to sign and return. These receipts were made on printed blanks filled out by the defendant, and in his handwriting they recited that they were "for board and care of Bridget Stewart." The plaintiff signed them and sent them back to the defendant. At the expiration of the 13 weeks' period, no change was made in the arrangement or in the relations of the parties. Bridget remained at the plaintiff's as before, and the plaintiff boarded and cared for her as before. Nothing was said or done to terminate or change the contract for the plaintiff's services. But the defendant paid the plaintiff thereafter $240 as follows: January 18, 1934, $40; February 14, 1934, $40; March 16, 1934, $40; April 17, 1934, $40; May 16, 1934, $40; June 18, 1934, $40. These payments were all made by the defendant's personal checks drawn on the Barre bank, and were receipted for by the plaintiff by receipts filled out by the defendant containing the statement, in his handwriting, "for board and care of Bridget Stewart." It is quite obvious that the checks were intended to cover the price of $10 per week, or $40 per month.
This course of dealing carries a strong implication that both parties understood that the original contract was, by tacit consent, continued in force. This inference was disputable, of course, and left a question for the proper consideration of the jury. But by the plainest principles of fair dealing, the plaintiff was entitled to notice of the change of relations between herself and her brother and to be relieved of the burden of her mother's care, before her pay could be cut off. She had a right to presume that her contract with the defendant continued on the same terms as before, and a jury would be amply justified in finding that fact from the course of dealing, alone. Williston, Contracts, Rev.Ed., § 390; Jones v. Moore, 50 Vt. 53, 57; Home Fire Ins. Co. v. Barber, 67 Neb. 644, 93 N.W. 1024, 60 L.R.A. 927, 108 Am.St.Rep. 716, 743; Sines v. Wayne County Superintendents, 58 Mich. 503, 25 N.W. 485, 487.
After Bridget came to the plaintiff's in August, 1933, she failed gradually but steadily in both mind and body, and finally, as early as September, 1934, became a complete wreck, mentally and physically. The labor of caring for her increased constantly. The nature and particulars of the care and attention her situation demanded need not here be recounted. It is enough to say that the plaintiff's labors and duties were enormously increased until, as she stated it, hers was a 24 hour a day job, worth $30 a week, and, as the defendant put it, a 20 hour a day job worth $25 per week. The time came when, as she said, the burden became too heavy for her to bear alone. On January 13, 1934, she wrote a letter to the defendant in which she referred to the matter of getting some one to help her; and she said that her brother Jim thought that the defendant "should make it (her pay) enough so I could afford to have some one to help me at this time." The defendant replied to this letter on January 18, 1934. He did not mention the subject of larger pay, but called attention to the fact that he had paid out for his mother a large sum which came out of his own pocket, and inclosed a check for $40, which he said also came out of his pocket. This was the $40 last above referred to.
In a letter dated June 18, 1934, the defendant wrote the plaintiff that he had arranged with Patrick to take Bridget and care for her. The plaintiff replied, vigorously objecting to this plan and insisting that she was going to keep her mother, and "look for pay" as...
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