Ricks v. Sumler

• Decision Date: 13 April 1942
• Citation: 19 S.E.2d 889
• Court: Virginia Supreme Court
• Parties: RICKS. v. SUMLER.

19 S.E.2d 889

RICKS.

v.SUMLER.

Supreme Court of Appeals of Virginia.

April 13, 1942.

HOLT, J., dissenting.

Error to Circuit Court, Sussex County; Robert W. Arnold, Judge.

Action by notice of motion for judgment by Mary Sumler against Charlie Ricks, administrator of the estate of Finley Jones, deceased, to recover a sum of money claimed to be due plaintiff as compensation for her services rendered to deceased during his life time. To review a judgment for plaintiff, defendant brings error.

Reversed and remanded for new trial.

Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Carlton E. Holladay, of Wakefield, and Robert W. Arnold, Jr., of Waverly, for plaintiff in error.

Frank P. Pulley, Jr., of Waverly, and W. Stanley Burt, of Claremont, for defendant in error.

EGGLESTON, Justice.

Mary Sumler, hereinafter referred to as the plaintiff, filed in the court below a notice of motion for judgment against Charlie Ricks, administrator of the estate of Finley Jones, deceased, seeking to recover the sum of $1,000 claimed to be due as "compensation for her services" rendered to Jones during his lifetime. The basis of the action is an oral agreement which the plaintiff alleges was entered into between her and the decedent, who was then in declining years, whereby she was to do his general housework, nurse and take care of him, and look after his crops, hogs and chickens, and in consideration thereof he was to devise and bequeath to her all of his property, both real and personal. The plaintiff alleges that she faithfully performed her part of the agreement over a period of more than ten years; that Jones died on March 28, 1940, while seized and possessed of both real and personal property; that in disregard of his promise and agreement, he failed to devise and bequeath to her the property; and that, therefore, the estate of the decedent was indebted to her in the sum of $1,000, with interest, that being the "fair value" of the real and personal prop erty of which Jones had died seized and possessed, and also the "fair value" of the services which she had rendered to him.

By pleas and grounds of defense the administrator asserted the defenses that: (1) the alleged contract whereby the deceased agreed to devise to the plaintiff his real estate was void and unenforceable under the statute of frauds, Code, § 5561, because not in writing; (2) the alleged debt was barred by the three-year statute of limitations, Code, § 5810; and (3) the alleged contract had not been performed by the plaintiff.

There was a trial by a jury which resulted in a verdict for the plaintiff in the sum of $1,000, on which the lower court entered the judgment which is here for review.

The first and principal contention of the administrator is that the present action at law cannot be maintained because it is based on an oral contract to devise real estate, in contravention of the "sixth" paragraph of the statute of frauds (Code, § 5561), which prohibits the bringing of an action "Upon any contract for the sale of real estate" unless it or some memorandum thereof "be in writing and signed by the party to be charged thereby".

It is settled in this State that an oral contract to devise real estate is within this paragraph of the statute of frauds. Hale v. Hale, 90 Va. 728, 730, 731, 19 S. E. 739, 740. In that case, as here, under the agreement sought to be enforced, the promisee was to "get the whole estate, real and personal, " of the promisor. We held that this agreement was within the statute.

In other jurisdictions the courts are practically unanimous in holding that an agreement to devise and bequeath all of one's property, or all of one's property, both real and personal, is within the statute of frauds, at least insofar as the real property is concerned. See 27 C.J., p. 209, § 170; 25 R.C.L., p. 587, § 190; Grant v. Grant, 63 Conn. 530, 29 A. 15, 38 Am. St. Rep. 379; Wallace v. Long, 105 Ind. 522, 5 N.E. 666, 55 Am.Rep. 222; In re Roberts' Estate, 202 Minn. 217, 277 N.W. 549.

In 24 Michigan Law Review 749, 760, it is stated that the highest court of Kansas alone has drawn a distinction between a promise to devise a particular piece of land and a promise to devise all of one's estate, and has held that the former prom-ise is within the statute and the latter is without the statute. See Stahl v. Stevenson, 102 Kan. 447, 171 P. 1164.

In the present case the plaintiff testified that the decedent promised that in consideration of her services he would "leave" to her "all the property that he had when he died, " which, of course, is the same as saying that he would leave her all of his property, both real and personal, and under the authorities cited is within the statute of frauds.

In Lloyd v. Smith, 150 Va. 132, 137, 138, 142 S.E. 363, we held that where the statute of frauds is asserted as a defense, an action for damages cannot be sustained for the breach of a parol contract for the conveyance of land, that is, no action at law can be based on the express contract. The same is, of course, true of a parol contract for the devise of land.

While in Timberlake's Adm'r v. Pugh, 158 Va. 397, 163 S.E. 402, we sustained a judgment for damages for breach of a contract to devise real estate, it appears from both the opinion and the record that the sole question presented to us was whether there was sufficient corroboration of the plaintiff's testimony to satisfy the requirements of Code, § 6209. In neither the lower court nor before us was the statute of frauds asserted as a defense. Therefore, such a defense was waived. See Eaves v. Vial, 98 Va. 134, 140, 34 S. E. 978; Moore Lumber Corp. v. Walker & Williamson, 110 Va. 775, 778, 67 S.E. 374, 19 Ann.Cas. 314.

But the fact that the plaintiff, because of the statute of frauds, cannot maintain an action at law for damages for the breach by decedent of the parol contract to devise the real estate to her, does not mean that she is without remedy in a court of law.

In Roller v. Murray, 112 Va. 780, 782, 72 S.E. 665, 666, 38 L.R.A., N.S., 1202, Ann.Cas.l913B, 1088, we said:

"The general rule is that where an agreement is treated as void merely because it is not enforceable, as in cases under the statute of frauds or of parol agreements where the contract is not in writing and money is paid or services are rendered under it by one party and the other avoids it, there can be a recovery upon an implied assumpsit for the money paid or the value of the services rendered. In such cases there has been the mere omission of a legal formality, and while by the terms of the statute he must lose the benefit of his contract, yet, there being nothing illegal or immoral in it, he is entitled to be compensated for the services rendered under it."

In 28 R.C.L, p. 693, § 30, it is said: "It is a general rule of law that he who gains the labor or acquires the property of another must make reasonable compensation for the same. Hence, when one furnishes labor to another under a contract which, for reasons not prejudicial to the former, is void and of no effect, he may recover the value of his services on a quantum meruit as a benefit to the person receiving them."

In Burks' Pleading & Practice, 3d Ed, p. 189, § 93, the author quotes with approval the following from Clark on Contracts: "Where an agreement is not illegal, but merely void, or unenforceable, and one of the parties refuses to perform his promise after performance or part performance by the other, the law will create a promise to pay for the benefits received."

In Hendrickson, Adm'x, v. Meredith, 161 Va. 193, 198, 199, 170 S.E. 602, we approved these principles as applicable to an action at law to recover the value of services rendered to a decedent in consideration of a promise of a testamentary provision.

They had been previously applied by us in McCrowell v. Burson, 79 Va. 290. There the defendant employed the plaintiff, by a parol contract, to furnish labor and materials to build a house and agreed to pay him in money, merchandise and land. After the plaintiff had incurred expense in preparing for the job, the defendant refused to allow him to perform it. We held that while the express contract to make payment in land could not be enforced, since it was within the statute of frauds, nevertheless the defendant was liable under the implied contract for the work done and materials furnished.

These principles apply here. While the statute of frauds bars an action at law to recover damages for the breach of the express agreement to devise real estate, it is well settled that such an action may be maintained on the implied contract to recover the reasonable value of the services rendered. See Williston on Contracts, Rev.Ed., Vol. 2, §§ 534, 536; 39 Harvard Law Review, p. 661, and cases cited; 27 C.J., p. 363, § 441; 25 R.C.L., p. 307, § 121; notes, 69 A.L.R. 90, 106 A. L.R. 753.

Unless the promisor has previously repudiated the contract, the cause of action for the value of the services rendered under such a Contract accrues upon the death of the promisor without having made the devise agreed on, for until that time the debt is not due. Appeal of Hull, 82 Conn. 647, 74 A. 925, 926; Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 6 L.R.A., N.S., 703, 8 Ann.Cas....