255 Mass. 519 | Mass. | 1926
This is an action of contract to recover from the defendants, as executors of the will of Samuel G. Chickering, on an oral contract to the effect that if the plaintiffs would stay with and care for the testator “as long as he lived, he would so provide that they would be well taken care of and provided for during the remainder of their lives after his decease.” The declaration also contained a count for labor and services in accordance with an account annexed. The answer is a general denial, payment, and that the alleged agreement was to make a will and was not in writing. The jury found for the defendants on the first count, and by direction of trial judge returned a verdict for the defendants on the second count. The exceptions relate to the admission of evidence, to the refusal to direct a verdict for the plaintiffs, to the direction of a verdict for the defendants on the second count, to the refusal to give certain requests for rulings, and to portions of the charge. The exception to the refusal to direct a verdict for the plaintiffs has not been argued and is treated as waived.
The second count being for labor and services is a count on a quantum meruit. If there is a failure of consideration in a special contract for services, the recovery is on quantum meruit. This occurs when the agreement is unenforceable
In 1917 he put certain securities in the hands of the Boston Safe Deposit and Trust Company in trust to pay the income to the plaintiffs and the survivor of them for fife and to pay the principal to such persons as the survivor should by will appoint or in the absence of such appointment to the heirs of such survivor. This was changed in 1919 so as to provide that the principal should go to the Carney Hospital on the death of the survivor. The income of this trust was paid to the plaintiffs from the time the trust was created, yielding to each about $900 per year. There was evidence from which the jury could find that this was a fulfilment of the testator’s obligations, but on the whole evidence the case was left to them to award such damages to the plaintiffs as would fulfil the testator’s obligation if they should find that the contract was made as alleged and was not fully performed by the trust agreement for their benefit.
The plaintiffs received room and board and one of them was paid wages during the period of her stay with the testator. The contract relied upon, although having some elements of
The judge correctly ruled that by reason of G. L. c. 233, § 66, the jury were permitted to hear evidence of the testator’s statements, acts and habits of dealing tending to disprove or show the improbability of his making the promise alleged by the plaintiffs, and that they might also use the evidence to assist them in determining the question whether the defendants had proved to the jury’s satisfaction that the testator had performed his agreement by the provisions' in this trust instrument. Because of this statute, the statement of the testator to the effect that $1,000 or $1,100 was sufficient to support a man was admissible in the discretion of the court.
The amount of property left by the testator as shown by
Exception was saved to the exclusion of testimony to the effect that the plaintiff’s back still hurts her, and to the refusal to rule that if the plaintiff Annie L. Greene became physically injured in and by the services she rendered the decedent, that fact and her present condition are material facts in determining her compensation and damages. The plaintiffs’ right of action was not for compensation for services. One of them, in direct examination having testified without objection that at times she had to hold the testator up and as a result she had pains in her back and side beginning in 1916, was asked in redirect examination whether she had fully recovered and answered “No, I don’t think I have.” She was then asked, “In what regard have you not? ’ ’ and replied “My back still bothers me.” Upon objection, made after the last answer, the question was excluded. The
No useful purpose would be served by referring in detail to the other exceptions saved. All questions argued have been considered and no reversible error is found.
Exceptions overruled.