180 Wis. 430 | Wis. | 1923
Lead Opinion
The following opinion was filed March 6, 1923:
At the time of the injury to the plaintiff he and his employer, the deceased uncle, were concededly subject to the provisions of the workmen’s. compensation act. Immediately upon the injury, therefore, a liability was imposed by law upon the uncle, now deceased, to make compensation for such injuries according to the rates and schedules provided in that act. The amount of the liability thus imposed could have been quite easily and definitely determined. For the present purposes it is quite safe to1 say that it would not have exceeded $5,000. The jury found that $4,000 was reasonable compensation for the injury sustained. At a time, therefore, when the deceased uncle was under a legal obligation to> the plaintiff in an amount not to exceed $5,000, he agreed with the plaintiff that if he would make him no trouble because of the injuries sustained he would make provision for him in his will so that he, the plaintiff, would never have to work. ITe died without making such ■ a provision, and the question is, What is the measure of plaintiff’s damages for tire, breach of the contract?
In Murtha v. Donohoo, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158, it appeared that the claimant had supplied the deceased, during a period of six years, with food, shelter, clothing, and money, the aggregate amount of which does not appear. This was all furnished prior to 1898. During the spring of 1901 the deceased promised claimant that he would give him bj^ his last will the sum of $1,000 for what he had done for him. He died leaving no such provision in his will. Claimant sought to recover the $1,000 so promised. The court held that the agreement was valid and binding, but that the measure of damages was the value of the executed consideration for the agreement and not the amount
The statute prescribing the manner in which wills shall be executed is in the nature of a statute of frauds. Perhaps no other legal document requires such solemnity in the manner of its execution. This is for the purpose of securing the highest degree of assurance that the testator’s-property will go as he wills it and to make it correspondingly difficult to divert it into other channels.. To permit this judgment to stand would open up an alluring field for frauds and perjuries and neutralize to a great degree the safeguards which the statute throws about the estates of deceased persons. It would permit any one having a claim against an
“Meritorious claims may occasionally be lost by the enforcement of such a rule, but the trumped-up claims that may be defeated by it will in all probability form a much more numerous class.”
The rule of the Murtha Case responds to every call of justice. It recognizes the validity'- of the contract, it postpones the running of the statute of limitations until the death of the testator, it allows as damages for the breach the full value of the services rendered or any other consideration passing from the claimant to the testator upon which the original claim rests. To allow more is to enforce a promised legacy, which should be recognized only' when created in the manner required by statute. While in reaching our coil-clusion no reliance is placed thereon, it is proper to refer to the fact that the element of consideration mentioned in the Murtha Case as passing from the deceased to the claimant as supporting the extension of the time of payment which took the contract'out of the statute'of frauds, namely, the
We regard the rule of the Murtha Case as sound in policy, consistent with the spirit and purpose of the statute regulating the execution of wills, one which yields to the claimant full compensation for any claim he may have against the deceased, resulting in injustice to no one. This general subject is treated in a note,to be found in 41 L. R. A. N. s. 246. Most of the cases there cited have been examined and no case has been found where the measure of damages for the breach of an agreement to compensate for an existing liability has been held to be anything but the value of the original claim. It necessarily follows that the judgment for $30,00CLcannot be sustained.
The question now arises whether plaintiff is entitled to recover in any amount. As appears from the statement of facts, the insurance company which indemnified the employer under the workmen’s compensation act paid the claimant in small weekly sums a total of $163.80. Upon the payment of the last instalment the plaintiff signed a release, in which appears this language:
“I hereby release and forever discharge the said insurance company and my said employer from any and all actions, causes of action, claims or demands, for, upon, or by reason of the accident suffered by me on or about the 17th day of February, 1914, and while in .the employment of said employer, which caused a disability until the 11th dav of July, 1914.”
Does this release bar a recovery on the part of the plaint
The question then is, What is the measure of plaintiff’s damages? Manifestly it is the amount to which he would have been entitled under the provisions of the workmen’s compensation act for the injuries which he sustained. The case was not tried on that theory and the verdict does not indicate the amount to which plaintiff is entitled. We hold that he is entitled to recover the amount to which he would be entitled under the provisions of the workmen’s compensation act, with interest from the date when in the ordinary course he would have received such compensation, to ascertain which a new trial is necessary.
By the Court. — Judgment reversed, and cause remanded for a new trial.
Dissenting Opinion
The following opinion was filed April 3, 1923:
(dissenting). I am deeply impressed that the decision of this court does the plaintiff a grave
The right of contract is as old as civilization. Freedom of contract is a fundamental principle of our government. So long as the contract is consonant with sound public policy as determined by our laws, and made pursuant thereto, no court has a right to impeach its obligation nor to substitute the obligation of the contract for an obligation prepared by the court without reference to the contract obligation. These principles are so well established by the decisions of the courts and by constitutional guaranties that no court has heretofore attempted to gainsay them. To get a proper perspective it 'is well to state the facts of the case simply and plainly.
In January, 1914, John Frieders had a hotel at Clinton-ville and a farm near by, where he lived. He was an aged bachelor, wprth over $100,000. Tony Frieders was his nephew, who had his- home with his parents on a farm near Stratford. He was a favored relative of his uncle. His mother was a sister of John Frieders. At his uncle’s request Tony had frequently visited the uncle and worked for him on the uncle’s farm. In October, 1913, at the request of the uncle, Tony went to live with his uncle and work for him on the farm. In January, 1914, the uncle sent Tony to work in the woods at Elmhurst, hauling logs. The work was unfamiliar to Tony, and was a dangerous occupation. Tony was thrown from a high load, one log rolled upon him, resulting in very serious injuries, because of which Tony was sent to a hospital by the uncle. Tony suffered much, and he became crippled for life. He was about'twenty-one years of age at the time of the accident. John Frieders was greatly disturbed over the injuries to Tony. He blamed
Flere this court finds that the contract was voluntarily and freely entered into; that it was'based on a sufficient consideration; that it was breached- by the decedent; and that Tony is entitled to damages'.
The sole question here is the measure of damages. To reach its most extraordinary conclusion, as I see it, the court conjures up ogres of fraud and perjury to rob estates, and then proceeds to- balk the thus created monsters by a newly-declared public policy, — a policy contrary to- the common law, contrary to the constitutions and the statutes, and contrary to the principles of justice oft repeated in both courts of law and equity. The public policy so declared in this case is that the court will set aside the obligation of the contract
The policy of the common law as to the class of contracts here being considered is stated thus:
“An agreement by which a person obligates himself, for a valuable consideration, to devise or bequeath property to the other contracting party is in no respect contrary to principles of public policy. • (The italics are the author’s.) The specific performance of such a contract will be granted in equity against the personal representatives of the prom-isor; for courts of equity have, from time immemorial, possessed jurisdiction in such a case to carry out the intention of the parties and to afford a remedy where the remedy at law is clearly inadequate. Equity will not make a will to take the place of that which has not been made. But, acting upon well-recognized principles, the court of equity will*440 fasten a trust upon the estate of the promisor in favor of the promisee which will attach to that estate in the hands of his heirs, executor, next of kin, or other persons, and which will be enforceable against them. In such a condition of affairs a court of equity will compel the legal owner of the property, who takes by descent or devolution from the prom-isor, to execute a conveyance of the property to the prom-isee.” 1 Underhill, Wills, § 286.
Restatement of rule:
“The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period or upon the happening of some future event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and'manner of disposing it.” Johnson v. Hubbell, 10 N. J. Eq. 332, 335, 66 Am. Dec. 773. 40 Cyc. 1064.
“The validity of a contract by which one of the con- ' trading parties agrees with the other, either for, a good or a valuable consideration, that he will make a will devising him property, whether real or personal, is valid beyond doubt. Such contracts have been sustained and enforced in England and America from the earliest times.
“The rules of law which are applicable to the subject of contracts generally are applicable to these agreements. . . .” 1 Underhill, Wills, § 285.
“A valid and enforceable agreement by one party to devise or bequeath certain property to another party calls for performance according to its terms, and is not satisfied by a devise or legacy of property of less value than that agreed upon, or of a smaller estate, or upon conditions, when the agreement was for an absolute and unconditional bequest.” 40 Cyc. 1067.
“Agreements to make wills are construed as other contracts in accordance with the expressed intention of the parties, and will include property acquired after the contract*441 where the contract covers estate remaining at death, and may make valid a devise made in accordance with it which would otherwise be void.” 40 Cyc. 1066, 1067; Daily v. Minnick, 117 Iowa, 563, 91 N. W. 913.
“A person may make a valid contract to dispose of his property by will in a particular way, and such contract will be enforceable.” 40 Cyc. 1063.
“The party who claims the property of the deceased under the contract may waive his equitable remedy and sue the executor for the value of the services rendered, or for damages for the breach of the contract.” 1 Underhill, Wills, § 287.
“The measure of damages recoverable for nonperformance of a contract to bequeath or devise property is dependent on the form of action. In an action for damages for breach of contract, the measure of damages is the value of the property agreed to be devised or bequeathed, and not the value of services rendered or other consideration furnished by the promisee, while in an action upon a quantum meruit to recover the value of services rendered by the promisee, the value of such services is the amount plaintiff is entitled to recover, provided, according to some cases, such value does not exceed the value of the property agreed to be devised.” 40 Cyc. 1073; 3 Sutherland, Damages (4th ed.) § 679; Sedgwick, Damages (9th ed.) § 606a.
In an action for breach of contract to make a legacy, the amount that would have been received if the contract had been kept is the measure of damages when the contract is broken. 8 Ruling Case Law, 452, and cases cited.
“As is shown in another, part of this work, contracts of this character may, after the^ death of the promisor, be enforced by bill in equity by fastening a trust on the property in the hands of the heirs, devisees, and personal representatives, and others holding the property with notice of the contract as volunteers. This remedy, however, is not exclusive. An action at law for breach of contract will lie, or the promisee may recover on the common counts for services rendered.” 40 Cyc. 1070.
“An agreement based upon a valuable consideration to make a particular disposition of property by will will not be*442 allowed to be defeated by conveyance during the lifetime of the decedent or by will, and one may sue i'n equity to establish a contract by defendant to will property to him, and to prevent conveyance of the property to another.” 40 Cvc. 1068, 1069.
This court now repudiates these general principles universally established, and for what reason? Because “to permit this judgment to stand would open up an alluring held for frauds and perjuries and neutralize to a great degree the safeguards which the statute [relating to wills] throws about the estates of deceased persons.” For hundreds' of years the law has been uniformly upheld without any such alluring fields having been explored to the public detriment. The courts have anticipated impositions on estates of deceased persons bjr requiring proof of claims to be clear and satisfactory. Dilger v. Estate of McQuade, 158 Wis. 328, 148 N. W. 1085; Winke v. Olson, 164 Wis. 427, 160 N. W. 164. And the legislature has safeguarded estates of deceased persons by not permitting claims to be proved by the claimant through conversations with the deceased. Secs. 4069, 4070, Stats. No such consideration for the protection of estates moved the court in Seaman v. Estate of McNamara, post, p. 609, 193 N. W. 377.
The supreme court of this state has upheld contracts for bequests by will since an early date. In Bayliss v. Estate of Pricture, 24 Wis. 651, Mr, Justice Paine said:
“It is not disputed that in law the claimant is entitled to recover of the estate enough to make up what his services were reasonably worth, provided they were rendered upon an understanding that they were to be compensated, in part at least, by a testamentary provision, no such provision having in fact been made.”
It appears that a specific bequest was not allowed in that case because of failure of proof, but recoveiy on quantum meruit was allowed.
In Slater v. Estate of Cook, 93 Wis. 104, 67 N. W. 15, recovery was allowed upon quantum meruit for services, but it is clearly implied that if proof had been sufficient plaintiff could have recovered for breach of contract to bequeath by will all the estate of deceased.
In Murtha v. Donohoo, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158, a claim was allowed for services on quantum meruit instead of upon a promise to bequeath by will because, as the court there held, the promise was based upon an executed or past consideration and hence such consideration formed no basis for the new promise. This distinction must be borne in mind, for the same Justices who participated in the decision of the case of Murtha v. Donohoo later decided the case of Dilger v. Estate of McQuade, 158 Wis. 328, 148 N. W. 1085, and in an opinion by Mr. Justice Barnes in the latter case, concurred in by the whole court, it was held:
“An oral contract based on a valid consideration to leave the promisee a legacy in personal property is lawful and enforceable. Jilson v. Gilbert, 26 Wis. 637; Slater v. Estate of Cook, 93 Wis. 104, 67 N. W. 15; Murtha v. Donohoo, 149 Wis. 481, 484, 134 N. W. 406, 136 N. W. 158. It logically follows that a written contract founded on a valuable consideration to leave real estate would • likewise be valid and capable of enforcement.”
In that case the plaintiff, when she was eight months old, was given into the custody of McQuade under a promise by McQuade that he would leave her all his property after the death of himself and his wife. At the time as well as at the time of his death he owned some real estate and personal
“If there was a valid contract, no good reason is apparent why the plaintiff might not elect to sue for damages for its' breach.”
He then proceeded to show that it was an action for breach of contract and triable by jury, and the judgment of the lower court was reversed, with directions to enter judgment on the verdict. The verdict so sustained was for all the balance of the estate of McQuade after his debts were paid. Now it should be noted that this was not an action on quantum meruit. It was’an action for breach of contract for failure to bequeath' property by will, and the damages were assessed under the rule laid down in 8 Ruling Case Law, 452, heretofore cited.
The distinction between an action on quantum meruit for services rendered and the case at bar for breach of contract in the settlement of a claim for personal injuries is well stated in Estate of Leu, 172 Wis. 530, 535, 179 N. W. 796, as follows:
“These cases firmly establish the principle that the cause of action accrues when the services are rendered, as in other cases of implied contract, and the person rendering such services may maintain an action upon them at any time.”
The whole basis of business has been built upon the law of contracts. In 1 Parsons, Contracts (9th ed.).pp. 3, 4, and 5, it is stated:
“The law of contracts, in its widest extent, may be regarded as including nearly all the law which regulates the relations of human life. Indeed, it may be looked upon as the basis of human society. All social life presumes it, and rests upon it; for out of contracts express or implied, declared or understood, grow all rights, all duties, all obligations, and all law. Almost the whole procedure of human life implies or, rather, is, the continual fulfilment of contracts. . . .
“Further, in all the relations of social life, its good order and prosperity depend upon the due fulfilment of the contracts which bind all to all. Sometimes these contracts are deliberate^ expressed with all the precision of law, and are armed with all its sanctions. More frequently they are, though still-expressed, simpler in form and more general in language, and leave more to the intelligence, the justice, and honesty of the parties. . . ¡
“If all contracts, express or implied, were carried into full effect, the law would have no office but that of instructor or adviser. It is because they are not all carried into effect, and it is that they may be carried into effect, that the law exercises a compulsory power.
“Hence is the necessity of law; and the well-being of society depends upon, and may be measured by, the degree in which the law construes and interprets all contracts wisely; eliminates from them whatever is of fraud or error, or otherwise wrongful; and carries them out into their full and proper effect and execution.” "
So the courts have upheld contracts with great strictness according to the intent of the parties. Wis. M. & F. Ins.
“The [trial] court found that there was also an understanding that the testator and his wife were to live with the lessees during the period of the lease. Shortly after the testator’s death the widow removed from the farm and lived with another daughter. Because the lessees were thus relieved of the support of the testator and his wife, the court charged the executrix with an extra cash rental of $30 per year, for the apparent reason that their support was^ worth at least $30 per annum. This was error. It amounted to a rewriting of the lease and the making of a new contract.” Will of Gehring, 179 Wis. 589, 192 N. W. 36.
But here, it is this court that rewrites the contract of the parties and substitutes an obligation of its own choice, which the parties did not put in their contract and which they never contemplated, for the true obligation entered into by the parties. The sanctity of contracts may no longer be held if this court can rewrite them according to its notions of what the parties should have done, instead of what they actually did.
In case of a breach of contract to devise or bequeath property the measure of damages is the value of the thing promised. 6 Page, Contracts (2d ed.) § 3235 ; Thompson v. Romack, 174 Iowa, 155, 156 N. W. 310; Benge v. Hiatt’s Adm’r, 82 Ky. 666; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Jefferson v. Simpson, 83 W. Va. 274, 98 S. E. 212; Graham v. Graham’s Ex’rs, 34 Pa. St. 475; Dilger v. Estate of McQuade, 158 Wis. 328, 148 N. W. 1085; Page, Wills, § 78. The neglect of a testator to make a will in accordance with a contract is a breach of the contract which will subject the estate to an action for damages. Howley v. Smith, 45 Ind. 183, 211; Drummond v. Crane, 159 Mass, 577, 35 N. E. 90; Newton v. Newton, 46 Minn. 33, 48 N. W. 450; Wylie v. Coxe, 15 How. 415; Chamberlain v. Dunlop, 126 N. Y. 45, 26 N. E. 966; Mills v. Smith, 193 Mass. 11, 78 N. E.
The conclusion of the court to substitute for the consideration of the parties expressly stated in the contract an amount such as the plaintiff could have recovered under the compensation act on the theory of an action on quantum meruit, is wholly without authority. There is no such thing as quantum meruit here. The action was brought for breach of contract. Where there is an express contract one may not abandon it and sue on quantum meruit. And here plaintiff seeks no such relief. On the theory of quantum meruit how are the damages to be ascertained? The court suggests a novel theory of having the lower court use the compensation act as the yard-stick. How can that be done ? The compensation act provides that the industrial commission is the only body having jurisdiction to ascertain the amount of compensation due a party. Even this court under a request of both parties in open court has refused to accept the responsibility placed on the commission by law. Frank Martin-Laskin Co. v. Industrial Comm., ante, p. 334, 193 N. W. 70.
This court assumes that the compensation act furnishes a definite and certain rule to determine the amount due a claimant under it. Not so. There are trials and tribulations under the compensation act as bad as under personal-injury "actions at common law. The case last cited is one where litigation has been pending under the act for nearly six years and the end is not in sight. Now why may not the parties to this action have preferred to settle their difference even under compensation and substitute a contract obligation in
It may be noted that since the filing of the opinion in this case the court has followed its former decisions in upholding contracts as made, even hard and unconscionable contracts. See Brosnihan v. Brosnihan, ante, p. 360, 193 N. W. 74, where the court says:
“The relief granted by the lower court, therefore, is such as neither of the parties contemplated, and amounts to the making of a new contract, which the lower court in the exercise of its equitable jurisdiction had no power to award and which this court cannot grant.”
If it be said that the amount of the verdict is large or the judgment excessive, the court could reduce the same or grant a new trial. But that question was not reached in the deci
I respectfully dissent.
A motion for a rehearing was denied, with $25 costs, on May 1, 1923.