Rizzo v. Cunningham
| Decision Date | 12 April 1939 |
| Citation | 20 N.E.2d 471,303 Mass. 16 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOSEPHINE RIZZO v. MARY CUNNINGHAM & another, executors. |
January 3, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & COX, JJ.
Contract Construction, To make will, Implied, With minor Consideration. Evidence, Of value. Minor. Damages, For breach of contract. Devise and Legacy, Whether benefaction or payment of debt.
Evidence respecting the circumstances of the making of a promise by an elderly woman to the plaintiff, a girl fifteen years of age who had been living with her for four years, in substance that, if the plaintiff would attend high school and would continue to live with her and be a companion to her, everything she had would be the plaintiff's when she was gone; that the promise was confirmed to the plaintiff four years later and admitted in conversation by the woman with a neighbor; and that the plaintiff satisfied the conditions, warranted submission to the jury of the questions, whether a contract was made and whether its meaning was that, if the plaintiff satisfied the conditions stated, the woman would leave her her property by will; and instructions were proper that while there could be no recovery upon such a contract, if made, there could be recovery upon a quantum meruit for the value of services rendered in reliance upon the woman's promise.
There was no merit in a contention that a minor girl, placed by her guardian in the household of an elderly woman, was legally bound to render services and care to the woman and that the girl could not give consideration for the woman's promise to leave her her property if she would render such services.
Testimony by a plaintiff as to the value of personal and household services rendered by him while a minor was admissible; its weight was for the jury.
In an action against an executor upon a quantum meruit for services rendered to the decedent by the plaintiff while a minor, the defendant was not entitled as a matter of law to have considered, "in modification" of the plaintiff's damages, a legacy to her in the decedent's will, where it did not appear that the plaintiff had accepted the legacy or that there was a statement in the will that the legacy was in payment in whole or in part of a debt to the plaintiff.
CONTRACT. Writ in the Superior Court dated June 26, 1933. A verdict for the plaintiff in the sum of $7,000 was returned before Hurley, J., and he reported the case to this court.
E. B. Cook, (J.
N. Esdaile with him,) for the plaintiff.
S. Abrams, (E.
L. Lane & H.
I. Klarfeld with him,) for the defendants.
This is an action of contract brought to recover for personal services alleged to have been rendered from September, 1925, to January 19, 1932, to Rose E. O'Brien, the defendants' testatrix, hereinafter referred to as Miss O'Brien. The case was tried to a jury on the second count of the plaintiff's declaration, upon a quantum meruit for the alleged services. The defendants pleaded, among other things the statute of frauds. The jury returned a verdict for the plaintiff which, on leave reserved, was set aside and a verdict for the defendants entered. The trial judge reported the case to this court upon the stipulation that, if there was admissible evidence warranting the jury in returning a verdict for the plaintiff, and the case was properly submitted to the jury, then judgment is to be entered for the plaintiff on the verdict, unless there was prejudicial error in the admission or exclusion of evidence or in the charge to the jury, in which case such order shall be made as justice may require; if this court is of the opinion that there was no evidence warranting a verdict for the plaintiff, then judgment is to be entered for the defendants.
The jury could have found that the plaintiff's parents died some time before 1921. In the fall of that year Miss O'Toole, a nurse in the school that the plaintiff attended, took her to the home of Miss O'Brien, who was then about sixty years old and lived by herself in a home that she owned. The plaintiff was then eleven years old. Miss O'Toole said to the plaintiff: ; and Miss O'Brien said: At that time Miss O'Toole had been appointed guardian of the plaintiff, although the latter did not learn of this until about 1932. While the plaintiff was attending grammar school, Miss O'Brien treated her generously and purchased clothes for her. The plaintiff helped around the house when she came home from school, took care of the furnace in the winter, mowed the lawn in summer, did the dishes, and a little of the washing, dusting and cleaning, "went to the store," and "did anything a child would do." She graduated from grammar school in 1925 and in that fall, just before high school opened, Miss O'Brien said to her: and the plaintiff thereupon told Miss O'Brien that she "would do everything she asked her to do, and that she would stay with her." In 1925, Miss O'Brien told her next door neighbor that "she had nobody left but Josephine and she had taken this little girl into her home to be her companion and to take care of her, and to be a companion for her, and . . . as long as Josephine would do all she wanted and be her companion and do right, she was to take care of Josephine and leave Josephine all she had." Some time in February, 1929, Miss O'Brien said to the plaintiff: The plaintiff then told her, "You talk too much about dying, forget it," and said that she would always stay with her and be her companion and they would have good times together. In the fall of 1929 Miss O'Brien said to her next door neighbor, in the plaintiff's presence: At that time Josephine said:
The plaintiff entered high school in the fall of 1925. She did practically all of the house work, including a part of the washing, and in the summer she took care of the lawn. In the winter she cared for the furnace and the coal; did all of the shopping for Miss O'Brien and took her out in her automobile. On Saturdays she cleaned the house from "top to bottom." The plaintiff went to Boston on Saturdays with Miss O'Brien and frequently assisted in selecting her clothes. She shampooed Miss O'Brien's hair, manicured her nails, and gave her facial massages. When Miss O'Brien was sick, the plaintiff cared for her. In February, 1931, the plaintiff entered a training school for nurses. Once a week she spent her day off with Miss O'Brien, did the work about the house and occasionally they went to Boston. In the fall of 1931 Miss O'Brien became ill, and the plaintiff returned to the home and remained there until Miss O'Brien died on January 19, 1932. During this interval Miss O'Brien said to the plaintiff: ; and the plaintiff replied: "I won't leave you and I am going to stay right here with you and take care of you."
The defendants contend that a contract cannot be made out from the conversation in 1925 between Miss O'Brien and the plaintiff; that there was no cross or redirect examination of the plaintiff as to this conversation; that the words used are not in dispute; and that the interpretation of the language used was for the judge and not for the jury. It is true that where a contract is oral, the question of what the contract is must, if controverted, be tried by a jury as a question of fact; but where the terms of a contract are undisputed, its construction and effect, where the contract is oral as well as where it is written, are to be determined by the judge. Globe Works v. Wright, 106 Mass. 207 216. If the meaning of words used by the parties to an alleged contract is doubtful, and extrinsic evidence is resorted to, their meaning is to be...
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Hatley v. Killion
...will the house where she lived to the plaintiff. It is unnecessary to determine whether the plaintiff's cause of action (See Rizzo v. Cunningham, 303 Mass. 16 , 23) arose February 1, 1932, or on December 11, 1936, when the testatrix died. See Daniels v. Newton, 114 Mass. 530; Tirrell v. And......