Leahy v. Cheney

• Decision Date: 27 June 1916
• Citation: 98 A. 132
• Court: Connecticut Supreme Court
• Parties: LEAHY v. CHENEY et al.

98 A. 132

LEAHY

v. CHENEY et al.

Supreme Court of Errors of Connecticut.

June 27, 1916.

Appeal from Superior Court, Hartford County; Joseph P. Tuttle, Judge.

Action by Mary A. Leahy, executrix, against Horace B. Cheney and others, executors. Judgment as of nonsuit, with order denying plaintiff's motion to set aside the nonsuit, and plaintiff appeals. No error.

Action to recover the value of services claimed to have been rendered for the defendants' testatrix under a contract which was extinguished by the death of the plaintiff's testatrix prior to the death of the former, brought to the superior court in Hartford county and tried to the jury before Tuttle, J., who, after the plaintiff's evidence was closed, granted a judgment as of nonsuit, and denied the plaintiff's motion to set aside the nonsuit.

Albert H. Barclay, of New Haven, for appellant. William F. Henney and John H. Buck, both of Hartford, for appellees.

THAYER, J. The claim of the plaintiff, as stated in her complaint and claimed in the brief of her counsel to have been established by the evidence, is that Antoinette R. Phelps, the defendants' testatrix, in 1872, requested Hannah Pigott, the plaintiff's testatrix, who was then a servant in and member of Miss Phelps' family, to remain in such employment as long as Miss Phelps should survive, and promised as compensation to pay her monthly wages for her services and in addition thereto to leave her by will, absolutely, a sum of money that would be sufficient to repay her for her services and to provide her a comfortable home so long as the said Pigott might survive, and that the latter accepted the proposition and promised to remain with Miss Phelps and perform the services upon the terms proposed. The pleadings and evidence show that the plaintiff's testatrix continued to live with Miss Phelps until February, 1912, when she died, having performed all services required of her to the time of her death, for which she had been paid $12 per month for a portion of the time, $15 for another portion, and $20 per month for the remainder.

It appears from the plaintiff's evidence that this action was not brought within one year from the time of the decease of her testatrix, and it is claimed in support of the judgment that the action was barred by General Statutes, § 1128, which provides that where the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, shall not have elapsed at the time of his decease, the term of one year from the time of such decease shall be allowed to his executor or administrator to institute a suit therefor, and that in such cases such term shall be excluded from the computation. The defendants' claim is that, if there was a contract such as claimed by the plaintiff, it was broken or extinguished by the death and failure of her testatrix to perform her part of it, and that the plaintiff's cause of action arose at the time of her death. Assuming this to be the case, the defendants' claim is untenable. Six years is the time limited by statute for the commencement of an action for breach of contract. Section 1128 was not intended to shorten the statutory time in the cases referred to, but to extend it in such cases, where otherwise it would expire in less than a year after the death, so that the decedent's representatives may have a full year in which to take out administration, learn of the existence of the claim, and bring suit. The executor or administrator has all the time which the decedent, if living, would have within which to bring the action; but, if less than a year remained to the decedent, his representative has a full year. The action in this case was brought within three years after the death of the plaintiff's testatrix, and so was within the statutory period.

The contract alleged provided that Miss Phelps should pay the plaintiff's testatrix monthly wages for her services, and that she would leave her by will a sum of money sufficient to repay her for her services and to provide her, so long as she should survive, a comfortable home. The plaintiff assumes that the monthly payment of wages for services was only a partial payment for services, and that the repayment for services later spoken of was for additional services not covered by the monthly wage payments first mentioned. The alleged contract is stated to have been by parol, and it is unnecessary for us to attempt to interpret it, as we are satisfied that the evidence was insufficient to warrant the jury in finding that the contract, or any other special contract for wages for services other than those which, admittedly, were paid for, was ever entered into by the parties. The complaint alleges that the plaintiff's testatrix, at the time the alleged contract is said to have been made, was a...