theresa S. Lawrence v. John W. Stewart

• Decision Date: 04 February 1938
• Parties: THERESA S. LAWRENCE v. JOHN W. STEWART
• Court: Vermont Supreme Court

196 A. 750

109 Vt. 333

THERESA S. LAWRENCE v. JOHN W. STEWART

Supreme Court of Vermont

February 4, 1938

January Term, 1938.

Continuance in Force of Contract between Sister and Brother for Care of Mother Implied from Course of Dealing---Right to Assume Continuance---Payments as Evidence Plan to Remove Mother Abandoned---Testimony Warranting Conclusion Parties Wanted Arrangement Permanent and Pay Fair---Recovery on Either Express or Implied Contract Where Complaint in Common Counts---Conclusion Justified Claim Not Retracted and Payment Made Not Deductible from Note---Testimony Indicating Payments for Care of Mother to Be Paid by Defendant from Own Resources---Question of Liability Held for Jury---Contract for Support of Mother Not Within Statute of Frauds.

1. In action between sister and brother to recover for support and care furnished their mother under alleged contract, where defendant admitted contract for limited period and made payments in accordance therewith, and for several months after expiration of such period continued to make such payments, this course of dealing carried strong implication that both parties understood that original contract was, by tacit consent, continued in force, so that plaintiff was entitled to notice of change of relations between herself and defendant and to be relieved of burden of her mother's care before her pay could be cut off.

2. In such circumstances, plaintiff had right to assume that her contract with defendant continued on same terms as before and jury would be amply justified in finding that fact from course of dealing.

3. In such action, payments made by defendant after he had suggested that his mother go to stay with another brother, to which plaintiff objected, saying she was going to keep her mother and look for pay as long as latter lived, showed that defendant then considered his mother was under plaintiff's care and that plan to take her away had been abandoned.

4. In such action, where defendant testified that during certain month he either wrote or said to plaintiff that he was glad his mother was with her, and assured plaintiff she was to have fair pay for her services, jury would be warranted in concluding that both parties wanted arrangement to be permanent and pay to be commensurate with labor involved.

5. In such action, where there was nothing in specification to limit plaintiff's proof to express contract, and where complaint was in common counts and no question of pleading was raised, and evidence and admission in special answer showed express contract for limited time, at least, while other evidence tended to establish implied contract warranting quantum meruit recovery, plaintiff could recover on proof of either express or implied contract.

6. In such action, where defendant had received money from his mother to handle for her benefit and given her a note therefor, where he had previously paid her a certain sum which she claimed he owed her, where he testified that after he received his mother's money she told him he never owed her sum she had claimed and asked him to deduct it from note, where he never endorsed amount on note and after he claimed this conversation took place informed plaintiff that fund represented by note was intact and made statements concerning amount of principal and interest indicating that full amount was still due, and where he admitted on stand that he claimed fund was intact until suit was brought, held that jury would be justified in finding that his mother did not retract her claim to amount paid her and that it was not deductible from fund represented by note.

7. In such action, evidence of conduct of defendant in making payments to his sister in excess of interest on note given by him to his mother and his insistence that principal of fund represented by note should not be used for care of mother indicated that defendant expected to make up amount due plaintiff from his private resources.

8. In such action, where evidence tended to show express contract by defendant to pay plaintiff for care of their mother during limited period and performance thereof, further payments by defendant thereafter at same rate, and understanding that arrangement was to continue and that plaintiff should receive reasonable pay for her services, and where there was no evidence that defendant ever notified plaintiff he would no longer make such payments, held that case was for jury on question of liability and defendant was not entitled to directed verdict.

9. Oral contract between sister and brother whereby sister was to care for their mother and brother was to pay her therefor was personal contract of sister, to be performed by her alone and not binding upon her representative or any other person, and terminated at death of either mother or sister unless sooner ended in some legal way, so that, as it might be fully performed within one year. Statute of Frauds did not apply thereto.

ACTION OF CONTRACT by sister against her brother to recover for board and care of their mother. Plea, the general denial and a special answer alleging performance of admitted contract denying further liability and alleging that any amount due was payable only from specific source. Replication, a general denial of the special answer. Trial by jury at the September Term, 1936, Rutland County, Buttles, J., presiding. Verdict directed for the defendant at the close of the evidence, and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

Novak & Bloomer for the plaintiff.

Finn & Monti for the defendant.

Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ.

OPINION

POWERS

This suit is brought to recover for the board and care of Bridget Stewart, the aged mother of the parties thereto. The complaint is the common counts in assumpsit. The answer is a general denial, and a special answer setting forth the establishment of the "fund" hereinafter described; admitting a contract with the plaintiff to keep and care for Bridget, the pay for which service was to come from the interest on said "fund," which contract was to continue for a period of three months, only; alleging the payment in full for that period; admitting that the plaintiff continued to keep and care for Bridget after the expiration of said period, but asserting that this was without any contract between the parties; alleging that during the continuance of said service, he paid the plaintiff various sums on account thereof voluntarily and without obligation; alleging that on June 22, 1934, he notified the plaintiff that he had arranged with their brother, Patrick, to support and care for Bridget, and that he would no longer be responsible therefor to the plaintiff; and averring that there remained in the "fund," after deducting the $ 650 hereinafter described, and other sums that he had paid out for his mother, the sum of $ 960.79, as of August 3, 1936.

This special answer was met by a general denial. The trial below was by jury, and at the close of the evidence, a verdict was ordered for the defendant. The plaintiff excepted.

Two questions stand for our determination:

1. Did the evidence, construed in the light most favorable to the plaintiff, fairly and reasonably tend to establish facts sufficient to warrant a recovery?

2. Does the provision of the Statute of Frauds relating to contracts not to be performed within one year preclude a recovery on the contract here involved, which contract was not in writing?

The evidence was sharply conflicting, and that of each of the parties was more or less uncertain and contradictory. But construed as above, it would justify a jury in finding the facts hereinafter recited.

Sometime in the year 1932, Bridget met with an accident which left her with a broken leg. The defendant arranged with his sister, Winnie, to take care of their mother. And though this contract called for a payment of only $ 15 per week, the defendant actually paid Winnie $ 20 per week for her services. This money all came out of his own pocket. The plaintiff knew about this, for the defendant wrote her all about it in his letter of August 4, 1933, which was before the plaintiff began to keep and care for Bridget under the contract here sued upon.

Just prior to July 31, 1933, Bridget had been making her home with her son, Patrick, in Mt. Holly, and was being cared for without charge. Patrick's wife, Anna, was worn with the strain, and asked to be relieved for a time. On the date last mentioned, the plaintiff wrote the defendant offering to take and care for their mother if he would pay her $ 10 per week. To this letter the defendant replied, expressing satisfaction with the price named, and informing the plaintiff that there was then due $ 65 of interest on the "fund," and that he would pay the next installment of interest, $ 65, in advance; that she could have this, which would cover 13 weeks at $ 10 per week; and that at the end of that time, perhaps Anna would take Bridget back. There was no direct and express promise in this letter to pay, either from the defendant's own money or from the interest on the "fund"; but the plaintiff was fully justified in understanding that she was to receive from the defendant for the care of Bridget, $ 10 per week for at least 13 weeks. Thereupon, on August 7, 1933, the plaintiff, with her brothers, James and William, went to Mt. Holly, and brought Bridget to the plaintiff's house in Cuttingsville, where she has since received adequate and satisfactory care at the hands of the plaintiff. At that time, Bridget was 83 years of age, nearly if not totally blind, much enfeebled in body, and mentally incompetent even to give her consent to the use of her own money for her own...