Estate of Moore, Appeal, No. 71

Appeal, No. 71 | Pa. Super. Ct. | Feb 16, 1900

Opinion by

Beaver, J.,

There is a clear distinction between a distinct finding of fact by an auditor, concurred in by the court below, to which the effect of a verdict of a jury will be given by an appellate court, and a conclusion of law or deduction from undisputed testimony which would raise the question as to whether or not there was sufficient evidence to go to a jury, as to which the appellate court can clearly judge and by Avhich it will not be bound. The finding of the auditor in the present case belonged to the latter class. Taking the testimony adduced before him as true, was there a contract between the decedent and the appellees for the increased compensation claimed ?

There is also a manifest distinction between a new contract for services rendered to a decedent in his lifetime not contemplated in a previous contract for services ,of a distinctly different character such as Avas found in Harrington v. Hickman, 148 Pa. 401" court="Pa." date_filed="1892-04-11" href="https://app.midpage.ai/document/harrington-v-hickman-6240726?utm_source=webapp" opinion_id="6240726">148 Pa. 401, and that large class of cases in which claims for extra compensation under the guise of an amended contract are made for an amount over and above that expressly fixed by contract such as were made in McHugh’s Estate, 152 Pa. 442" court="Pa." date_filed="1893-01-23" href="https://app.midpage.ai/document/mchughs-estate-6241193?utm_source=webapp" opinion_id="6241193">152 Pa. 442, Brose’s Estate, 155 Pa. 619" court="Pa." date_filed="1893-05-31" href="https://app.midpage.ai/document/broses-estate-6241620?utm_source=webapp" opinion_id="6241620">155 Pa. 619, and Rosencrance v. Johnson, 191 Pa. 520" court="Pa." date_filed="1899-05-22" href="https://app.midpage.ai/document/rosencrance-v-johnson-6245352?utm_source=webapp" opinion_id="6245352">191 Pa. 520. In the latter case Mr. Justice Mitchell, delivering the opinion of the court, said : “ There is no more fruitful source of dispute and litigation than claims for extras, and where they are super-added to claims upon an express contract for services of the same or a similar kind they should be made out clearly and explicitly before they are alloAved.” In the present case the claim is of the character above stated. There is no dispute as to the original contract, but it is claimed that the decedent in various Avays indicated her belief that the claimants — the appellees here — ■ were not sufficiently paid, and manifested a disposition to pay a considerable amount over and above that fixed in the original contract. The court below in approving the finding of the auditor said: “ The question is we think, under all the evidence, a very close one, but we are not convinced that it was improperly solved by the auditor,” and bases the conclusion thus reached, upon Harrington v. Hickman, supra; but in that case, as was specially found therein and has since been pointed out in some of the cases above cited, the judgment of the court-beIoav in granting a nonsuit was reversed on the distinct ground that the original contract was for ordinary housework, and that a new contract, which was entirely distinct, had been entered into for nursing the decedent.

There can be no doubt of the value of the services rendered by the appellees in this case to the decedent, and there is as little question as to the desire of the decedent to compensate them in some way for what she recognized as valuable services and increased care. The question recognized on all hands as being the important one is, was there a distinct contract for the payment of increased compensation different from that originally entered into between the parties ? We cannot find anywhere in the case the clear and explicit evidence upon which such a contract should rest. However meritorious the claim of the appellees may be, it is of much more importance that the rule wisely established and long held should be adhered to, than that such a claim should be paid, even in a meritorious case, by a relaxation of the rule.

If the original contract, in which the amount to be paid was expressly stated, was changed, there should have been equal clearness as to the amount to be paid under the new contract. In the testimony quoted in the opinion of the court below, as justifying the auditor in his conclusion as to his finding of a contract, every element of a contract is wanting. There is no allegation that the decedent had agreed to pay the appellees, or that the amount to be paid had been in any way indicated or fixed. It was not the language of a person whose estate was liable or was to be made liable for payment for services rendered, because of a contract made, but that of a person who, out of the gratitude which she felt for kindness done, was willing “ when she got her money ” — which was in effect a contingency — that John should jpay them. The other language, that they were not half paid for what they had done for her and that she was not half paying them, would seem rather to indicate that the previous contract was in force, but that she desired, as a gratuity, that they should receive something in addition, than that a new contract had been entered into.

It is not necessary, in this view of the case, for us to enter into a discussion of the question as to whether or not the claim of the appellees was res adjudicata by reason of the judgment rendered against them in the court of common pleas in a suit upon the note given by the decedent in acknowledgment of their services. The jury must have found against them in that case upon the testimony of one of them that she understood the amount included in the note to be a gift from the decedent to her and her sister. If her view was correct, it was, of course, conclusive as to the right to recover and would seem almost necessarily also to be conclusive in the present case. As to this, however, we express no opinion, as we prefer to rest our decision upon the other ground.

In any view of the case, we fail to see how the decree oi the court below, based upon the finding of the auditor, can be sustained. The decree is, therefore, reversed, the exceptions to the report of the auditor sustained, and the record remitted to the court below to make distribution accordingly.