Weeks v. Lund

• Decision Date: 12 March 1897
• Citation: 45 A. 249,69 N.H. 78
• Parties: WEEKS v. LUND et al.
• Court: New Hampshire Supreme Court

45 A. 249

69 N.H. 78

WEEKS

v. LUND et al.

Supreme Court of New Hampshire. Belknap.

March 12, 1897.

Bill by Jennie M. Weeks against Edward A. Lund and Edwin P. Thompson, executor of Horace P. Batchelder, deceased. Bill dismissed.

The bill alleges: That September 1, 1891, the plaintiff made a contract with Batchelder, by the terms of which she agreed to board and lodge him so long as he should live; to do his washing and ironing; to provide him with such a number of rooms in her dwelling house, all lighted, heated, and furnished in a manner and style suited to his comfort and convenience, considering his feeble physical condition, as might be necessary for him to occupy; to care for him and nurse him in sickness; to allow him the entire use and occupancy of the barn connected with her dwelling house, and to board and lodge free of charge all friends that might visit him from time to time. That Batchelder on his part, and in consideration of the foregoing agreement of the plaintiff, agreed with the plaintiff to pay her $3.50 for each week, and to devise to her the entire title to one of two tracts of land, in each of which he then owned an undivided half. That Batchelder was at the time stated, and long had been, in feeble health, and unable to care for himself, was anxious to procure a home for the rest of his life, and from his knowledge of the plaintiff and acquaintance with her preferred to obtain a home with her than with some other person in whom he would have less confidence, and from whom he could not expect like nursing and care. That said contract was fully performed by the plaintiff, who was put to great trouble and expense in nursing and caring for the deceased during a long illness and otherwise. That Batchelder paid her $3.50 a week until October 1, 1892, and nothing afterwards. That at his death he left a will, of which the defendant Thompson is executor, executed March 21, 1893, in which, for the purpose and with the declared intention of performing his said agreement, he devised to the plaintiff one of the tracts of land referred to in said contract, having at that time agreed with the plaintiff which of the two tracts should be devised to her. That at that time proceedings were pending for the partition of said lands upon petition of Batchelder, but because of his illness partition was not made, and at his death he owned only an undivided half of the land devised to her. That, since the services rendered by the plaintiff to Patchelder were of a personal nature, their value to him cannot be ascertained or estimated in money, and compensation cannot be adequately made to the plaintiff except by the specific performance of the contract. That the defendant Lund, who was not mentioned in the will, asserts himself to be the only son and heir of Batchelder, and claims the entire estate. The prayer of the bill is that the defendant Lund may be ordered to convey to the plaintiff whatever interest he may have in the tract' of land devised to her, and that Thompson, the executor, be ordered to pay her reasonable compensation for the half of the land to which Batchelder had no title. The defendant Lund demurs.

E. A. & C. B. Hibbard, for plaintiff. Thomas Cogswell and Sumner E. Blackstone, for defendant Thompson.

Bingham, Mitchell & Batchellor and John M. Mitchell, for defendant Lund.

PARSONS, J. It is conceded upon the briefs and in argument that the contract upon which the plaintiff relies was not reduced to writing. The point argued is whether, upon the facts stated, specific performance of an oral contract to convey land by will can be decreed. We have, therefore, considered the substantial controversy between the parties without reference to the technical question whether the bill, containing no allegation that the contract relied upon was reduced to writing, is not sufficient upon demurrer. Pub. St. c. 215, § 1; Browne, St. Frauds, § 505; Walker v. Richards, 39 N. H. 259, 267, 268. The claim is that the facts alleged constitute part performance sufficient to take the case out of the statute. There is no allegation that any improvements have been made by the plaintiff, or that she has entered into possession. Part performance of a contract within the statute of frauds is not sufficient to take the case out of the statute unless it places the party in a situation that will operate as a fraud upon him if the agreement is not performed. Tilton v. Tilton, 9 N. H. 385, 390; Kidder v. Barr, 35 N. H. 235, 255; Johnson v. Bell, 58 N. H. 395; Abbott v. Baldwin, 61 N. H. 583, 585; Seavey v. Drake, 62 N. H. 393; Stillings v. Stillings, 67 N. H. 584, 586, 42 Atl. 271. Therefore mere payment of the purchase money is not sufficient to authorize a decree for specific performance. Brown v. Drew, 67 N. H. 569, 42 Atl. 177; Ham v. Goodrich, 33 N. H. 32, 30; Glass v. Hulbert, 102 Mass. 24, 28. The fact that the payment was made in labor, instead of money, is not material. Peters v. Dickinson, 67 N. H. 389. 32 Atl. 154. The plaintiff concedes that, if the services forming the consideration of the contract are of such a character that they may be estimated, and their value liquidated in money, the contract is within the statute. Her claim is that, where the services rendered are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and where it is evident the parties did not Intend to measure them by any such standard, it is impossible adequately to compensate the party performing the services except by a decree for specific performance; and it is urged that the performance of such a contract upon one side takes the case out of the statute, because the party performing is thereby placed in a situation that will operate as a fraud upon him because of the inadequacy of pecuniary damages to effect such compensation as will prevent the fraud. Whether, upon this ground, specific performance of an oral contract to convey land can be decreed,—a point upon which the authorities are in conflict (Browne, St. Frauds, § 463, note),—it is now unnecessary to decide, because we are satisfied that the services described in the bill do not support the claim made. The averment in the bill that, since the services were of a personal nature, their value cannot be ascertained or estimated in money, and that compensation therefor cannot be adequately made except by the specific performance of the contract, is one of argument by inference from the facts stated. The...