Parker v. Macomber

• Decision Date: 11 April 1892
• Parties: PARKER v. MACOMBER.
• Court: Rhode Island Supreme Court

24 A. 464

17 R.I. 674

PARKER

v. MACOMBER.

Supreme Court of Rhode Island.

April 11, 1892.

Assumpsit by Arthur T. Parker against Lydia A. Macomber. There was judgment for plaintiff, and defendant petitions for a new trial. Denied.

Charles J. Arms, for plaintiff.

Samuel W. R. Allen, for defendant.

DOUGLAS, J. This is an action of assumpsit, brought to recover compensation for board, maintenance, care, and nursing for 390 weeks from April 1, 1881, to October 1, 1888, at $5 per week—$1,950. The declaration contains the common counts in indebitatus assumpsit for goods sold and delivered, work and labor, money had and received, and for interest. The jury returned a verdict for the plaintiff, and assessed his damages at $1,072.50, being at the rate of $2.75 per week for 390 weeks. It appeared that the services rendered were induced by a parol agreement between the parties by which the plaintiff agreed that he and his wife should live in the house of the defendant and care for and maintain her during her natural life, and the defendant agreed, in consideration of these services, that she would charge no rent for the house, would pay eight dollars per month board, and would give the house and leasehold interest in the lot to the plain tiff at defendant's death. She did not pay the board as agreed, but did pay some milk bills for the plaintiff on account. Plaintiff's wife died February 13, 1888, and from that time he furnished housekeepers. In August, 1888, defendant notified plaintiff to leave the house, and he removed October 1. Evidence was introduced against the objection of defendant of the value of the services rendered. The defendant now prays for a new trial, on the ground that the services were performed under an entire contract, which was not completed by the plaintiff because of the death of his wife, whose personal attendance formed an essential part of the consideration of it, and because the evidence objected to was inadmissible under the declaration. The plaintiff contends that after the death of his wife the same services were rendered by the housekeepers whom he engaged, and that he was prevented from completing the contract by the defendant, who ejected him from the house, and not by his wife's death.

The questions which are raised by the petition are whether the plaintiff can recover what his services are reasonably worth, notwithstanding the making of the contract, and, if so, whether this declaration is sufficient without a count in quantum meruit to admit evidence of the value of the services and to sustain judgment therefor. We cannot doubt that when this action was brought the agreement had been annulled, if it ever had had any validity. If the leasehold interest were for a term exceeding one year, the agreement amounted to an attempt to convey an interest in real estate by parol, and was void under the statute of frauds. In such case, as the defendant refused to continue the arrangement, whether justifiably or not, the plaintiff is entitled to recover the value of his services already rendered. Lockwood v. Barnes, 3 Hill, 128; King v. Welcome, 5 Gray, 41. While it seems to be assumed that the lease was for a long term, and the probabilities of the situation lead us to the same supposition, unfortunately there is no evidence reported which enables us to find the fact, and we cannot presume that the agreement was void without proof. We must therefore consider the agreement as originally binding, and determine the rights of the parties upon that view of the case.

If the plaintiff was prevented from continuing his contract by the arbitrary act of the defendant, he may disregard it, and recover the value of the services he has rendered in partial performance of it. Greene v. Haley, 5 R. I. 260. If the death of the plain tiff's wife was a substantial failure of the consideration, then the defendant was justified in rescinding the contract, as the full performance of it on the part of the plaintiff had become impossible. We think such was the case. The personal services and attentions of the wife to the defendant, who was the plaintiff's aunt, were undoubtedly contemplated by the parties as more agreeable and efficient than the services of strangers could be, and may well be considered an essential part of the benefits which the defendant was to receive. Yerrington v. Greene, 7 R. I. 589; Knight v. Bean, 22 Me. 531; Spalding v. Rosa, 71 N. Y. 40; Stewart v. Luring, 5 Allen, 306.

The question is then presented whether a person who has rendered personal services under an entire contract which the act of God has prevented him from fully performing can recover upon an implied assumpsit what those services are reasonably worth. In case of the destruction of the fruits of the services, so that neither party has the value of them, the loss must be adjusted according to the scope of the contract and the circumstances of the case, and different courts may come to diverse conclusions in cases which are verisimilar to each other. But when, as in this case, the defendant has received and retains the benefit of the services, we think that, the. plaintiff should recover. It is not just that we should benefit by the labor of another, and make no return, when the event which ends the service happens without fault of either party, and is not expressly or impliedly insured against in the agreement which induced the labor. This conclusion seems now to be established by authority, as well as to rest in sound reason. We know of no case which holds that, if the special agreement is no longer binding, the plaintiff may not resort to a quantum meruit. The leading case of Cutter v. Powell, 6 Term. R.320. held the special contract not to have been annulled by death, and there were circumstances connected with the agreement which gave color to that construction. The contract was to perform a voyage for a compensation to be paid upon arrival largely in excess of the ordinary wages for such services....