Sliski v. Krol

• Decision Date: 03 March 1972
• Citation: 279 N.E.2d 924,361 Mass. 313
• Parties: Mildred SLISKI, administratrix, v. Catherine L. KROL, administratrix.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 924

279 N.E.2d 924

361 Mass. 313

Mildred SLISKI, administratrix, v. Catherine L. KROL, administratrix.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 10, 1972.

Decided March 3, 1972.

John J. O'Connell, Worcester, for plaintiff.

William H. Welch, Northampton, for defendant.

Before TAURO, C.J., and SPIEGEL, REARDON and BRAUCHER, JJ.

TAURO, Chief Justice.

This is an action of contract by the administratrix of the estate of Alphonse Krol against the administratrix of the estate of John Krol. The plaintiff contends that the intestates, John Krol and Alphonse Krol (father and son) entered into an oral agreement whereby certain services rendered by Alphonse for his father would be compensated for by a provision in the will of the father. The father failed to make such a provision in his will and the plaintiff seeks recovery for the fair value of the services rendered by her intestate.

The jury returned a verdict for the plaintiff. The case is here on the plaintiff's exception to the allowance by the trial judge of the defendant's motion for the entry of a verdict under leave reserved.

The evidence warranted jury findings that Alphonse did render such services for his father under such an oral agreement until May 1, 1950, when the services were terminated by Alphonse because of his illness. Alphonse died on June 2, 1954. John Krol died on August 28, 1965, without making provision in his will as agreed.

The plaintiff was appointed administratrix of the estate of Alphonse Krol on September 20, 1965. The defendant was appointed administratrix of the estate of John Krol on November 24, 1965. This action was begun by writ dated June 8, 1966.

The defendant's principal contentions are that the action is barred by the statute of frauds; that Alphonse broke the oral agreement when he discontinued his services to his father on May 1, 1950; that the suit is barred by the statute of limitations; that Alphonse Krol's cause of action did not survive his death and thus it could not be enforced by the administratrix of his estate.

1. The law is clear that the action is not barred by the statute of frauds. Shopneck v. Rosenbloom, 326 Mass. 81, 93 N.E.2d 227.

2. We cannot agree that Alphonse broke the agreement by terminating his services on May 1, 1950, because of his illness. The jury could have found that because of physical disability he was unable to continue with the work and, therefore, there was no wilful and unjustifiable departure by Alphonse from the terms of the agreement. Jackson v. Boston Safe Deposit & Trust Co., 310 Mass. 593, 39 N.E.2d 85; Stearns v. Blevins, 262 Mass. 577, 160 N.E. 417. Moreover, the plaintiff seeks only to recover for the fair value of services actually rendered.

3. We reject the defendant's contention that the action (commenced on June 8, 1966) is barred by the statute of limitations (G.L. c. 260, § 2, as appearing in St.1948, c. 274, § 1). The short answer to this contention is that the cause of action did not accrue until the oral agreement was broken by the defendant's intestate by his failure to provide in his will for the payment of Alphonse's services. Shopneck v. Rosenbloom, 326 Mass. 81, 93 N.E.2d 227. ¹ The action was begun within a year after the death of the defendant's intestate on August 28, 1965. Therefore, the plaintiff's action is not barred by the six year statute of limitations. General Laws c. 260, § 10, as amended by St.1937, c. 406, § 2, has no application. (This statute has reference to cases where the right of action accrued during a lifetime of decedent.)

'It is an underlying principle in the application of the statute of limitations that before it can begin to run there must be some one in existence, by whom, and a different person, against whom, the claim may be enforced.' Bremer v. Williams, 210 Mass. 256, 258, 96 N.E. 687, 688.

In an action by a creditor against a widow to account for the premiums paid by her husband on a life insurance policy, this court held that the cause of action did not accrue and the statute of limitations did not begin to run until the death of the husband. York v. Flaherty, 210 Mass. 35, 40, 96 N.E. 53.

4. The right of action survived the death of Alphonse Krol. 'The general rule is that a right of action founded upon a contract survives the person entitled in his lifetime to sue, so that the right passes upon his death to his personal representative.' ² Drewen v. Bank of Manhattan Co., 31 N.J. 110, 118, 155 A.2d 529 citinG schouler, executors, § 277 (3d ed.). G.L. c. 228, § 1. See Price v. Holmes, 198 Kan. 100, 106, 422 P.2d 976. In the Drewen case, with an analogous factual situation, the court stated: 'It is not unusual that at death a decedent owns contract rights that he could not have...