Muench v. South Side Nat. Bank

• Decision Date: 14 July 1952
• Docket Number: No. 41942,No. 2,41942,2
• Citation: 251 S.W.2d 1
• Parties: MUENCH v. SOUTH SIDE NATIONAL BANK
• Court: Missouri Supreme Court

Page 1

251 S.W.2d 1

MUENCH v. SOUTH SIDE NATIONAL BANK.

No. 41942.

Supreme Court of Missouri, Division No. 2.

July 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1952.

Harold O. Piening, Edwin D. Franey, Hay & Flanagan, St. Louis, for appellant.

Edward C. Schneider, Harry A. Frank, St. Louis, for respondent.

VANDEVENTER, Judge.

This is an action against an administrator for compensation for services alleged to have been rendered deceased during his lifetime. It was tried to a jury with a verdict for plaintiff for $20,435.99. The trial court sustained the motion for new trial believing it had committed error in giving Instruction No. I. From the granting of the new trial, plaintiff appealed.

Plaintiff's petition alleged that Frederick Joern, a resident of St. Louis County, died on or about the 13th day of April, 1948, and that the defendant, South Side National Bank, a corporation, was duly appointed administrator of his estate. It was then alleged that from May, 1931 to April, 1948, plaintiff 'at the special instance and request of Frederick Joern' rendered certain services, describing them, 'for all of which services the said Frederick Joern, deceased, promised and agreed to pay plaintiff.' It was also alleged that the services were reasonably worth $3 per day, or a total $18,564 for a period of sixteen years, eleven months and 13 days, and that no part of said sum had been paid. Judgment was prayed for that amount with interest from the 13th day of April, 1948.

The answer denied the request for, or rendition of, the services, and the promise to pay for them.

Plaintiff's evidence showed that the services, which will be hereafter more particularly described, were rendered from May 16, 1931, to April 13, 1948, by plaintiff, at the request of deceased, that she did shopping for him, prepared many meals for him, did his sewing, washing and ironing as needed, took him to physicians for treatment from time to time and to other places as requested by deceased, consulted with his lawyer relative to certain condemnation proceedings pending against deceased, for all of which no compensation had been received. The plaintiff was a grand niece of the deceased, and from May 16, 1931 to August 6, 1941, lived four or five miles from him. After the last named date she lived near him but they were not members of the same household.

Instruction No. I given at the request of plaintiff, as modified by the court, was as follows:

'The Court instructs the jury that if you find and believe from the evidence that the plaintiff Edna Muench, at the special instance and request of the deceased Frederick Joern, from about May, 1931, to April 13, 1948, rendered services to the deceased (describing services) and if you further find that at the time of the rendition of such services, if any, plaintiff intended to have compensation for such services, and that deceased promised and agreed to pay plaintiff, then the jury are authorized to find that there was a promise to pay plaintiff the reasonable value for such services; and if you find that there was such an agreement and promise, then your verdict should be for plaintiff, in such sum as you may believe from the evidence such services are reasonably worth, not to exceed $18,564.00, together with interest thereon at the rate of 6% per annum from the 13th day of April, 1948.'

After the verdict and judgment, motion for new trial was filed, alleging, among other things, that Instruction No. I was erroneous and this motion was sustained;

'Because the Court erred in giving Instruction No. I requested by the plaintiff, modified by the Court and given by the Court as modified.'

The appellant contends that the court did not err in giving Instruction No. I. The respondent contends that it was erroneous (a) in permitting the jury to find there was a promise to pay plaintiff the reasonable value of her services when an express promise was pleaded and the evidence showed that as compensation she was to have his estate at his death, (b) that it permits a suit on one cause of action and recovery on another and different cause of action; (c) that it fails to require a finding as to the relationship of the parties and, (d) that it failed to direct the jury to find the amount and extent of the services, the number of days and length of time during which the services were rendered.

In a memorandum opinion handed down at the time the motion for new trial was sustained, the trial court expressed the belief that the verdict was for an excessive amount, and that there was 'no substantial evidence to support a finding of daily services rendered the deceased by the plaintiff before she moved to his neighborhood.' This feature we will discuss later.

As to the specific contract for services, plaintiff's evidence showed that deceased requested her to render the services for which she claims compensation and told her that as compensation for those services, he would leave her all his property at his death. No will was found after his death and his estate is being administered as if he had died intestate. Neither did he deed his property to plaintiff. There is some evidence on the part of defendant that deceased had stated that plaintiff wanted him to execute a will but he did not intend to do so but would die intestate and let his heirs fight over his estate.

After the failure of deceased to keep his promise to compensate for the services by leaving his property to the plaintiff, she had three remedies. She could (1) bring a suit in equity for specific performance, and if her contentions were sustained, would receive the property owned at his death less expenses of administration and provable debts against the estate, (2) maintain (under certain circumstances) a suit for damages for breach of contract, or (3) abandon the contract and sue in quantum meruit for the reasonable value of those services. Joseph v. Joseph, Mo.App., 164 S.W.2d 145; Blackwell v. De Arment's Estate, Mo.App., 300 S.W. 1035; 34 C.J.S., Executors and Administrators, Sec. 373, page 119.

It seems to be conceded by everyone that there could be no recovery on a suit for damages for breach of the contract because of the Statute of Wills, the Statute of Frauds and the impossibility of proving the net value of the estate to which amount plaintiff's recovery would be limited in that kind of a suit. Hall v. Getman, 121 Mo.App. 630, 97 S.W. 607.

Where services are rendered by a person not standing in a family relationship, the presumption is that the services were not gratuitous. Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39; 34 C.J.S., Executors and Administrators, Sec. 784(b), page 853; Limbaugh's Missouri Practice, Vol. 2, Sec. 785.

The law implies a promise to pay their reasonable value after proof that the services were requested and actually rendered with expectation of compensation. Thomas v. Fitzgerald's Estate, Mo.App., 297 S.W. 425; Patrick v. Crank, Mo.App., 110 S.W.2d 381; 34 C.J.S., Executors and Administrators, Sec. 373, page 119.

The failure of the deceased to keep his contract, by leaving the property to the plaintiff, forced her to follow one or the other of the methods above enumerated to procure compensation. She chose the third, a suit in quantum meruit. In this case, the answer of the administrator denies that there was any request for services, that any services were in fact rendered any that any promise was made to pay for them.

Plaintiff does not, nor is she required to, plead or prove the specific promise to pay for the services. She was only required to plead and prove that at his request she rendered the services, that they were worth the amount asked and the law then presumes that they were to be paid for. Patrick v. Crank, Mo.App., 110 S.W.2d 381; Warren v. Davis, Mo.App., 97 S.W.2d 159.

When plaintiff pleaded and proved a specific promise to pay for the services, and the jury was required to find a specific promise, she assumed a greater burden than the law required and the defendant could not complain of it. Henderson v. Dolas, Mo.Sup., 217 S.W.2d 554. She merely pleaded and proved and the jury was required to find that which the law would have otherwise implied.

Defendant does not plead the existence of a family relationship, giving rise to the presumption that the services were gratuitous, but denies everything. Such a defense is special and affirmative, is in the nature of confession and avoidance and should have been pleaded, if it were to be relied upon. Section 509.090 RSMo 1949, V.A.M.S.; In re Talty's Estate, 232 Iowa 280, 5 N.W.2d 584, 144 A.L.R. 859; Anno. 144 A.L.R. 864.

Neither does defendant's evidence show such a defense but rather that no services were in fact rendered. This case was not tried upon the theory that the services were rendered gratuitously by one standing in a family relationship, but that they were not rendered at all.

There is no evidence in the entire record that such a relationship existed. Plaintiff from 1929 to January 1931 was regularly employed at the J. C. Penney Company in St. Louis. She began working there when she was about 19 years of age. She was married September 29, 1930 to Roy Muench. A female child was born of this marriage, September 25, 1933. She lived four or five miles from deceased until August, 1941, (which was more than ten years after the alleged agreement was made) when she and her husband built a house near him but never did she and her great-uncle live in the same household. It takes much more than the fact that she was the grand niece of deceased to establish the family relationship, even if that question were properly in this case. Patrick v. Crank, Mo.App., 110 S.W.2d 381.

Evidence of the express promise to pay and the agreed compensation, was admissible to show an intention on the part of the deceased to pay for the services, that plaintiff expected payment and the value the parties put upon them. Burns...