216 Ill. App. 312 | Ill. App. Ct. | 1920
delivered the opinion of the court.
Plaintiff brought suit, filing a declaration consisting of the common counts and two special counts, by which she sought payment for board and nursing of Rudolph Hess, now deceased. Upon trial she had verdict of a jury and judgment for $1,400, which the defendant says should be reversed.
No motion for a new trial appears in the bill of exceptions, which is the only place where such a motion properly can appear. (Smith v. Kahill, 17 Ill. 67; Deitrich v. Waldron, 90 Ill. 115; Butt v. Lee, 27 Ill. App. 419.) Hence we cannot consider the sufficiency of the evidence to support the verdict. (Metropolitan Discount Co. v. Pitsch, 208 Ill. App. 407.)
The evidence tended to show that for the services rendered to Hess he promised to pay plaintiff by leaving her as a bequest in his will the home in which he lived, and such a will was made. Subsequently Hess made another will, in which, for some reason which does not appear, he failed in his promise to plaintiff and left her nothing. Defendant contends that under such circumstances, there being an express contract as to the manner of "payment, plaintiff cannot recover on a, quantum meruit. Ho reported eases are presented supporting this contention. In Schouler on Wills (5th Ed.), vol. 1, sec. 453, it is said:
“If the aged or feeble decedent makes no will, or makes a different will from what was agreed upon, or revokes a bequest which was founded upon his own promise, the claim may be presented for settlement, to the whole or partial absorption of the estate, as the case may be. * * * Equity under circumstances of hardship and injustice to innocent third parties may refuse specific performance and remit the party to a creditor’s action at law, quantum meruit.”
This is supported by many citations. To the same effect also are Martin v. Wright’s Adm’rs, 13 Wend. (N. Y.) 460; Robinson v. Raynor, 28 N. Y. 494; Stone v. Todd, 49 N. J. L. 274, 8 Atl. 300. We see no reason, in justice why plaintiff may not recover on a quantum meruit when Hess failed to keep his obligation .to compensate through his will.
There is no merit in the suggestion that the evidence varies from the bill of particulars. However, this point is not properly before this court, as the bill of particulars is not preserved in the biff of exceptions, where it should be. (Star Brewery v. Farnsworth, 172 Ill. 247; Peterson v. Mayer, 142 Ill. App. 257.)
It was not error for the husband of plaintiff to testify. The agreement between Hess and plaintiff for compensation contemplated that it should be her exclusive property. This made the husband competent under the exception of section 5, Statute on Evidence and Depositions (J. & A. 5522).
It was proper to admit evidence concerning both wills. The first tended to show that the services were not gratuitous but were rendered under a promise of payment. The second tended to show that that promise had failed, leaving plaintiff her right to recover what the services were reasonably worth.
What we have said as to a plaintiff’s right under the law supports the propriety of the instructions of the' court to this effect, .
There was no error in refusing to give the instructions presented by the defendant, as suggested in the brief. As we have said above, the evidence shows that the agreement was made with the plaintiff and not with her husband. He makes no claim for any part of the compensation.
The points made in defense are wholly technical in character and make appropriate the axiom that a technical reply is sufficient for a technical attack.
The trial resulted in substantial justice. Plaintiff is entitled to compensation and we cannot accord the technical matters of the defense sufficient weight to require a reversal. Therefore the judgment is affirmed.
Affirmed.
