Stork v. Troeger

• Decision Date: 03 March 1956
• Citation: 103 Ohio App. 144,144 N.E.2d 675
• Parties: , 3 O.O.2d 207 STORK, Appellant, v. TROEGER, Ex'r, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 144

103 Ohio App. 144

144 N.E.2d 675, 3 O.O.2d 207

STORK, Appellant, v. TROEGER, Ex'r, et al., Appellees. ^*

Court of Appeals of Ohio, Defiance County.

March 3, 1956.

Syllabus by the Court.

Where a will by which a decedent leaves his property to another person is executed the same day as a contract between the decedent and such other person, which contract contains no promise or agreement to make a will and which provides that 'it is impossible to arrive at a definite figure * * * to be paid for the services to be rendered by' such other person and that such other person 'will accept whatever' decedent 'determines to be a just consideration for the services performed and to be performed,' and the will makes no reference to the contract; neither the will nor the contract constitutes an enforceable contract entitling such other person to specific performance thereof, and such will is subject to revocation by a subsequently executed will.

E. J. Hummer, Defiance, and John W. Winn, Cleveland, for appellant.

Karl H. Weaner, Jr., Defiance, for appellees.

MIDDLETON, Judge.

This is an appeal on questions of law from an order of the Court of Common Pleas of Defiance County dismissing, on motion, the first cause of action in plaintiff's amended petition and entering judgment thereon in favor of defendants.

This action is brought by plaintiff against the executor of the estate of George D. Browns and his heirs at law.

The plaintiff sets out two causes of action in his petition. In the first cause of action he seeks specific performance of a contract for personal services performed by him for the decedent, George D. Browns. In the second cause of action plaintiff sets forth a claim for the personal services described in the first cause of action, based on quantum meruit, and pleads in the alternative for a money judgment if it is determined that he is not entitled to specific performance of the contract under his first cause of action.

The cause was submitted to the court on the first cause of action, and, at the conclusion of plaintiff's case, the defendants moved for a dismissal of the first cause of action and for judgment in favor of defendants on the first cause of action. This motion was sustained by the court, and it is from the entry of such judgment that appeal is prosecuted to this court.

The facts, as developed by the evidence, are, in brief, as follows:

The deceased was an elderly man in poor health and living alone. An application had been filed in the Probate Court for the appointment of a guardian for him on the ground that he was an incompetent person by reason of advanced age and mental and physical infirmity. On the date set for hearing of this application it was agreed by the parties that the interests of George D. Browns would be best served by arrangements for someone to take care of him. Pursuant to this agreement a contract was entered into between the plaintiff and the decedent providing for such care. After the execution of the contract, a copy was filed with the Probate Court and the application for the appointment of a guardian was dismissed without a hearing.

The contract as entered into described the character of the services which had been performed in the past by the plaintiff and the character of the services to be performed by the plaintiff in the future in looking after and taking care of the decedent during his declining years. The compensation to be paid the plaintiff for such services is, by the terms of the contract, stated as follows:

'It is mutually agreed by and between George D. Browns and Harry E. Stork that at the time and date of this contract it is impossible to arrive at a definite figure in dollars and cents to be paid for the services to be rendered by Harry E. Stork, as the parties hereto, from their past association and experiences, recognize and realize that the services will vary from time to time, and that it is reasonable to anticipate, because of the age of George D. Browns, that such services will necessarily increase in the future; and it is further understood and agreed between the parties that the said Harry E. Stock will accept whatever George D. Browns determines to be a just consideration for the services performed and to be performed.

'And it is agreed by the said George D. Browns, in consideration whereof, he promises and agrees to compensate for the aforesaid services.'

This contract was executed on November 9, 1949. On the same day, and while the contract was being typewritten, it was agreed that if the decedent would leave all his property to the plaintiff, by will, both parties would be protected. After this discussion concerning a will, the contract was executed and filed with the Probate Court. The will was dictated during the time the contract was being transmitted to the Probate Court and, upon completion the same day, was signed by the decedent. The pertinent part of the will is set forth in item 2 thereof, as follows:

'I am a bachelor and have lived alone for many years. For the last 30 years I have been a neighbor of my friend Harry...