The appellant, upon his appeal to the Superior Court from the doings of the commissioners upon the estate of Patrick Coyle, deceased, filed in that court the following claim against said estate, being, as conceded, the same claim presented to the commissioners and disallowed by them.
"Estate of Patrick Coyle, to Thomas Donahue, Dr.
"In 1882 Patrick Coyle verbally promised Thomas Donahue that he would convey to him the house and lot where the said Thomas Donahue resides, in consideration for the promise on the part of said Thomas Donahue that he would do and perform such legal business as the said Patrick Coyle should require the said Donahue to do and perform, during the remainder of the life of said Patrick Coyle. The said
house and land were then of the value of about seven thousand dollars. The said Donahue, ever since said promise was made, did and performed such legal services as were required of him by the said Coyle. The said Coyle neglected and refused to convey to the said Donahue, the said house and land, though requested so to do, and particularly about September 30th, 1885. The said Donahue claims seven thousand dollars damages from the estate of said Coyle for the breach of the above mentioned agreement."
To this statement of claim the administrator demurred, assigning, among other grounds, the statute of frauds and the statute of limitations. The demurrer was sustained, and thereupon the appellant filed the following statement of his claim.
"Amended statement of the plaintiff's claim.
"In 1882 Patrick Coyle promised Thomas Donahue that he would convey to him, Donahue, the place where he, Donahue, resided; and the said Donahue promised, in consideration thereof, that he would act as attorney and counsellor for the said Coyle, and do and perform all the legal services required of him by the said Coyle during the remainder of the said Coyle's life. In pursuance of said agreement, which was wholly by parol, the said Donahue worked and labored and counseled and advised with the said Coyle, as an attorney and counsellor-at-law, and did and performed all of the legal services required of him by the said Coyle during the remainder of the said Coyle's life, and for a period of about nine years, and he reasonably deserved to have for his services and labor, and for his counsel and advice aforesaid, the sum of $7,000."
This was also demurred to on the ground that the record disclosed that no such claim was ever presented to or considered by the commissioners, and that therefore the claimant could not have been aggrieved by their doings. This demurrer was also sustained, and the appeal presents for our consideration two assignments of error; that is to say, the decision of the court upon each of said demurrers.
The first requires merely a statement. The claim as originally
filed was simply and only one for damages for refusal to perform an oral agreement for the sale of real estate. No authority except the language of the statute of frauds itself (now General Statutes, § 1366,) is necessary to show that such a claim cannot be enforced. No civil action can ho maintained upon such an agreement. It is unnecessary to consider the applicability of the statute of limitations also.
The second assignment requires a more extended examination. It should be noted at the outset that the record does not show that any action of the Superior Court was asked for, either to allow the amended statement or to erase it. The demurrer was substantially because such amendment changed the ground of action. And it is said in the brief of the appellee that "this demurrer was in substance an objection to the allowance of the amendment, and was so regarded by the parties and the court." Since the argument of the appellant was in virtual affirmance of this statement, we have concluded to consider the real question presented, without other reference to the form of presentation except to say that it appears to us an inapt and incorrect way, and one which after this suggestion we shall not be likely to overlook so readily again.
Gen. Statutes, § 1029, provides that in hearings before the Superior Court on appeal from the doings of commissioners, "the claimant shall have liberty to amend any defect, mistake, or informality in the statement of the claim, not changing the ground of action." Was the amendment made a change of the ground of action?
The purpose of our various statutes of amendment, as has been often held by this court, is a beneficial one, and as such they have "continually been more and more liberally expounded." Buckley v. Andrews, 39 Conn., 535. The term "ground of action" has been frequently defined by this court, and it has been held that it refers to what was the real object of the claimant in making his claim.Nash v. Adams, 24 Conn., 39. It was even stated by Judge LOOMIS in an opinion given in the Superior Court, case of Johnson v. Sikes,56 Conn., 594, that the language "a cause
of action arising from the same transaction," is but little more than the expression in another form of the same idea which is intended and conveyed by this term, "ground of action." Nor is there any reason why such term, as used in the section of the statutes under consideration, should have any different, certainly any more restricted, meaning than has been given to it where elsewhere used and construed by this court. For it was said by this court in Tolles'sAppeal from Commissioners, 54 Conn., 521, that upon the presentation of claims to commissioners on insolvent estates, "it is only necessary that the claim should be so stated that it can be understood;" and again in Cothren's Appeal fromCommissioners, 59 Conn., 549, "that the existence of the claim is shown and its character may be reasonably understood." But applying these liberal principles in favor of the claimant, we are still constrained to say that in our opinion the amendment made does change the ground of action. For the claim as originally stated in the Superior Court, which the claimant in his appeal asserts to be the form in which it was presented to the commissioners, was purely and solely a claim to recover damages resulting from the breach of an agreement to convey a certain house and lot, the consideration for the agreement being, as averred, not services rendered, but a promise to perform services if required — a contract on the part of Coyle to do a certain thing absolutely, in consideration of a promise on the part of the claimant to do a certain other thing conditionally, the actual performance of which could have no other relevancy except to show, if it became necessary to show, that the claimant himself was not guilty of the first breach by neglect or refusal to perform his promise, such performance having been required. It was a contract which would have been as completely executed on the part of the claimant, had either he or Coyle died within an hour after it was made, or both having lived for years, no request had been made by Coyle upon the claimant for any services, as if services to the full amount in value of seven thousand dollars had been rendered; a contract executed, indeed, on the part of Donahue,
the moment the promise was made, and in no wise requiring, as precedent to his right to demand a conveyance, the performance of the stipulated service during the lifetime of Coyle; treated as such a contract by Donahue, who, in his original claim, expressly states the neglect and refusal of Coyle to convey upon request as a breach; a contract, as stated, therefore differing in its most vital particular from the one stated in Starkey's Appeal from Commissioners,61 Conn., 199, which was, as this court then said, founded on personal services, the performance of which during the life of the decedent was the consideration. Hence it is manifest that in the case before us, under the claim as originally tiled, evidence upon either side concerning the value of services actually rendered could not be relevantly introduced. And not only is there no statement in the claim concerning such value, but it is not even stated that any were rendered, and the only demand is for damages equal to the alleged value of the house and land for breach of the recited agreement. Hence there is not, as it seems to us, anything in the claim presented from which the existence of a demand for compensation quantum meruit, for services actually rendered, could be inferred. If "the real object of the claimant in making his claim," was to recover such compensation, it ought, we think, to be conceded that he was at some pains to conceal such object. Nor do we think a claim for such compensation can be held to be "a cause of action arising from the same transaction" as that originally stated. That transaction was the alleged verbal promise of Coyle, made in 1882, while the claim for work and labor for which the claimant seeks to recover under his amended statement, though therein stated to have been done in pursuance of said agreement, can in fact derive no vitality therefrom, for it can in no form be enforced or any action based thereon be maintained. The amendment is therefore simply a claim for such services as may have been rendered from time to time upon the implied promise of Coyle to pay therefor (as the claimant says) what he "reasonably deserved to have." Contrasting, therefore, the two claims, it will be seen that no
common ground exists. The essentials of one are the non essentials of the other, and conversely. It is essential to the original contract that a promise to convey land, in consideration of a promise to labor upon request, should be proved. It is not essential to show that any labor was in fact performed. It is essential for the enforcement of the amended claim to prove that work and labor was performed, and not essential that any such promise as that stated in the original claim, on the part either of Coyle or the claimant, should be shown.
There is no error in the judgment complained of.
In this opinion the other judges concurred.
NOTE. — The practice with regard to appeals from commissioners on insolvent estates is becoming so loose and irregular that the reporter considers it a service to the profession to call attention to some of the more common irregularities. It happens that these are exhibited in a noticeable way in the record of the foregoing case, not however involving the action of the judge who rendered judgment in it in the Superior Court.
The case in the first place is filed