Graham v. Stanton
177 Mass. 321
Mass.
1901
Check Treatment
Holmes, O. J.

This is an action to recover for services rendered by the plaintiff in the household of John Stanton, the defendant’s intestate, from the time that she entered it, a little girl eight years old, in 1870, until 1884, and later between 1890 and 1893. Stanton took the plaintiff from an orphan’s home and treated and spoke of her as his adopted daughter. She received her support and was sent to school, and did domestic work in return. At eighteen she married, but for three years she kept on without change. Then she moved into the next house, but performed services from time to time until Stanton died in 1892. There was a break, however, from 1884 to 1890. The case is here on exceptions, of which it is enough to mention one to a ruling that the items through 1884 were barred by the statute of limitations, others to refusals to rule that if the plaintiff rendered her services in the belief that she was Stanton’s adopted daughter and that belief was due to false representations by Stanton, she could recover fair compensation, and one to a further ruling that a new promise of which we shall speak later, did not help the plaintiff as to the items barred.

It would be a strong thing to say that an actual contract to pay for services could be inferred from the conduct of one who takes a child into his household under the name of daughter. The fact of his calling her so implies that he is not purporting to enter into relations with her on a business footing. See Mulhern v. McDavitt, 16 Gray, 404; Livingston v. Hammond, 162 Mass. 375; Kirchgassner v. Rodick, 170 Mass. 543. But if the law were otherwise, the statute of limitations would be a bar to the items through 1884, and there was no fraudulent concealment of the cause of action. The only fraud suggested is that Stanton falsely represented that the plaintiff was his adopted daughter. This representation was not a concealment of the cause of action on a contract actually made, which of course, if made, the plaintiff must be taken to have known. There is no ground, either, for saying that the services before 1884 were items in a mutual account current.

*326The ground on which the plaintiff would have to rely is that there were fraudulent representations made by Stanton to the plaintiff concerning her status, which, if true, would exclude a contract, and which therefore did exclude an actual contract; that, as these representations were false, the law would imply a contract by fiction in aid of justice, and that the'cause of action on this implied contract was fraudulently concealed by the combined effect of the original fraud and of the silence which followed it. Manufacturers' National Bank v. Perry, 144 Mass. 313. With regard to this contention it is enough to say that if there was any evidence of fraud in the statements made, a conclusion which could be reached only- by the harshest interpretation of words which seem only to have expressed affectionate relations, it is settled by Cooper v. Cooper, 147 Mass. 370, that the remedy is an action of tort for the deceit and that a contract is not to be implied. See also Ogden v. McHugh, 167 Mass. 276. We remain satisfied with that decision. The case is unlike those where services are understood to be rendered for reward and the actual contract is made unavailable by the conduct of the defendant. There seems to be no sufficient reason for resorting to a fiction when the law gives a remedy on the actual facts. If on the footing of the supposed relation the plaintiff had transferred to Stanton money, or property which was converted by him into money, an action of contract might have been allowed upon the empirical considerations on which contract constantly is resorted to when unmarked money is wrongfully withheld. But there is no argument to be drawn from such a case to this. It is unnecessary to consider other objections which would have to be answered before the plaintiff could recover on this ground.

The strongest ground upon which the plaintiff’s argument was put was that on various occasions, and especially when he was ill, Stanton made a new promise to the plaintiff, in consideration of her continuing to take care of him and of services to be rendered, that he would pay her for the past as well as for the present. There is no trouble, of course, about the sufficiency of such a consideration to support a promise to pay for past services as well as for future ones. Vinal v. Richardson, 13 Allen, 521, 526. If there had been a contract to pay for the past ser*327vices which was barred by the statute of limitations, the validity of the new contract would not be affected by Pub. Sts. c. 197, § 15, requiring a writing in order to take a case out of the statute by a mere acknowledgment or promise. Devine v. Murphy, 168 Mass. 249, 250. The only question on this part of the case is with regard to the meaning of the evidence. We shall not go over all the expressions testified to, but shall content ourselves with saying that no one of them seems to us fairly to bear the construction that it referred to the period when the plaintiff was living in Stanton’s house as a girl or young married woman.

Exceptions overruled.