Peters v. Estate of Poro

• Decision Date: 13 May 1922
• Citation: 117 A. 244,96 Vt. 95
• Parties: CHRISTIE PETERS v. ESTATE OF EUGENE PORO, SOPHIE CURTIS, APPELLANT
• Court: Vermont Supreme Court

117 A. 244

96 Vt. 95

CHRISTIE PETERS v. ESTATE OF EUGENE PORO, SOPHIE CURTIS, APPELLANT

Supreme Court of Vermont

May 13, 1922

October Term, 1921.

APPEAL from the decision of the commissioners allowing the claim of Christie Peters against the estate of Eugene Poro. Complaint in the common counts. Pleas, the general issue and the statute of limitations. Replication of an agreement by the intestate within the period of the statute of limitations. Trial by jury at the September Term, 1920, Chittenden County Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion state the case.

Judgment reversed and cause remanded.

J J. Enright, T. E. Hopkins, and H. A. Bailey for the defendant.

M G. Leary and V. A. Bullard for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

This is an appeal from the allowance of commissioners on the estate of Eugene Poro. The claim in question was for personal services rendered to the intestate and in the care of intestate's mother, Christie Poro, and of his brother, Uber Poro. The cause was tried in the court below on a complaint in the common counts, to which the defendant pleaded the statute of limitations and the general issue. During the trial the plaintiff was permitted, against defendant's objection, to file what was termed a replication counting on an agreement by the intestate, made within the period of the statute of limitations, to pay for the services in caring for his mother and brother by way of a will devising all of his property to the plaintiff. The intestate was killed in an accident on April 23, 1918, and no will was found. The plaintiff and the appellant are sisters of the intestate and Uber Poro. They and two other sisters married and had homes of their own. The brothers were unmarried and remained at the homestead where all the children were born, for many years making their home with their mother, who was a widow. Uber was older than the intestate. In 1894 the mother conveyed the homestead to him in consideration of his furnishing her proper support and care during her lifetime. The intestate and his mother and brother thereafter continued to live together as before. The plaintiff's home, where she kept house for her husband and family, was but a short distance from that of her mother and brothers. The mother was an invalid for the last nine years of her life and there came a time when she required such care and attention as could not properly be performed by the sons. Plaintiff's evidence tended to show that for about nine years before the mother's death in November, 1911, in addition to her own household duties she did much of the brothers' housework and gave her mother the necessary care that her infirmity demanded. After the mother's death the brothers lived alone, and the plaintiff continued to do their housework, washing and cooking, the washing and cooking in part being done at her own home. In November, 1912, Uber Poro conveyed the house and lot where they lived to the intestate for the consideration expressed in the deed of one dollar and the right to the use of one room in the house so long as he should live. He was then in poor health, and for about three years before his death depended more or less upon the care of others. He was suffering from tuberculosis, and for several months at least was quite helpless. The plaintiff's evidence tended to show that she took practically the entire care of Uber in this illness. He died in September, 1917. After Uber's death the intestate occupied the homestead alone, but what, if any, assistance he received from the plaintiff about the housework does not appear. He was about his usual employment when he met with the accident that caused his death. There was evidence tending to show that the plaintiff's circumstances required her to work out at times, and that she was obliged to give up this service in part at least to attend to the wants of her mother and brothers.

There was no evidence as to the arrangement under which the Poro home was maintained. It could fairly be inferred, however, from what appeared respecting their relations, that the sons shared in the expenses of maintaining the family and the mother conducted the household until prevented by her infirmity, after which the sons did such of the housework and gave their mother such care as they were able to do. They were people of limited means, and the sons were laboring men, whose work when employed required them to be away from home during the daytime.

So far, the facts were not in dispute or the evidence was such that the questions were clearly for the jury. The principal controversy was and is whether there was any evidence of an agreement by the intestate to pay for any of the services. The question was raised by a motion for a directed verdict and by various exceptions to the charge. The plaintiff's claim embraces three distinct classes of items, as to each of which the court took a special verdict. Under the charge the jury found the plaintiff entitled to recover $ 624 for services rendered in the care of the mother from November 6, 1906, to the date of her death, November 17, 1911. They also found her entitled to recover $ 390 for services in the care of Uber, and other services for the intestate, from November 23, 1911, to the death of Uber, September 12, 1917. They found, however, that the plaintiff was entitled to recover nothing for services after the latter date. The general verdict was for the plaintiff for $ 1,014.

Respecting all of the services for which the plaintiff seeks to recover, it is claimed that on the evidence the services were gratuitous and not rendered with any expectation as to payment on the part of either party. The defendant assumes that there was no evidence of an express contract, and invokes the rule that where services are rendered to a deceased person by members of his own family, they are presumed to have been rendered for love and affection, and that a contract to pay therefor will not be implied. We have no case that goes to this extent.

It is well settled that where services are rendered by a child to a parent, or by a parent to a child, an implied promise to pay for the services is not inferred from the mere fact that they have been performed. Danyew v. Powers' Estate, 84 Vt. 255, 78 A. 785, and cases there cited. This rule has been extended to other relationships of those living in the same family, including brothers and sisters. See Andrus v. Foster, 17 Vt. 556; Davis v. Goodenow, 27 Vt. 715 (niece); Lunay v. Vantyne, 40 Vt. 501 (adopted daughter); Sprague v. Waldo, 38 Vt. 139 (son-in-law); Briggs v. Briggs' Estate, 46 Vt. 571 (sister); Ashley v. Hendee, 56 Vt. 209 (foster child); Ormsby v. Rhoades, 59 Vt. 505, 10 A. 722.

But with us the only effect of this rule is to take the case out of the general rule of the law of contracts, that, whenever valuable service is rendered with the knowledge and approval of the recipient, an obligation to pay therefor will be presumed, in the absence of a showing to the contrary. 2 Parsons on Contracts, 46; Lunay v. Vantyne, 40 Vt. 501; Harris v. Currier, 44 Vt. 468. The validity of the claim is an open question; but to warrant recovery in such a case the plaintiff must go further and show that the services were rendered either under an express contract or with a mutual understanding and expectation of payment, though such contract or such understanding and expectation may be inferred from the circumstances. Danyew v. Power's Estate, supra; Way's Admr. v. Way's Estate, 27 Vt. 625; Ashley v. Hendee, 56 Vt. 209; Bliss v. Hoyt's Estate, 70 Vt. 534, 41 A. 1026; Drown's Guardian v. Chesley's Estate, 92 Vt. 19, 102 A. 102 L.R.A. 1918, 1056.

Some of the earlier cases, notably Sprague v. Waldo, 38 Vt. 139, and Lunay v. Vantyne, 40 Vt. 501, give the impression that an express promise must be proved when the relation of the parties is that of parent and child, or its equivalent. This apparent contradiction, however, is due to a failure to distinguish between contracts implied in law and contracts implied as a matter of fact. Cases of the nature involved here all contemplate contracts of the latter class, which are essentially the same in that the source of the obligation in each case is the intention of the parties. The terms "express contract" and "contract implied in fact" indicate a difference only in the mode of proof. A contract implied in fact is implied only in that it is to be inferred from the circumstances,--the conduct, acts or relation of the parties,--rather than from their spoken words. Bliss v. Hoyt's Estate, 70 Vt. 534, 41 A. 1026; Raymond v. Sheldon's Estate, 92 Vt. 396, 104 A. 106. See, also, In re Bryant's Estate, 73 Vt. 240, 50 A. 1065. It was said in Andrus v. Foster, 17 Vt. 556, that it is difficult to lay down any general rule upon the subject; that every case will be more or less affected by its own peculiar circumstances,--the amount and kind of labor, the ability and necessity of the parent (the recipient of the services), the course of dealing between the parties, whether they kept accounts or not, whether the demand for compensation is made early or late. These and similar circumstances will be significant indications of the expectation of the parties at the time.

It was said in Westcott v. Westcott's Estate 69 Vt. 234, 39 A. 199, that mutual expectation could be shown by the circumstances under which the services were performed, the situation and surroundings of the parties, their pecuniary circumstances and the declarations of the party sought to be charged. To support the inference the circumstances must fairly tend to show that the parties at the time of the service...