101 A. 525 | N.H. | 1917
From the acceptance by the defendant's testatrix of the service rendered her, the law implies a promise to pay what the service was worth. The fact of service and its value are not contested but the defendant contends that the evidence conclusively establishes that all the services were rendered under an express contract to furnish them for a fixed sum paid in advance. The only exception before the court is one to the refusal of the court to order a verdict for the defendant at the conclusion of the evidence. To sustain the exception therefore not only must the existence of the alleged contract conclusively appear, but it must appear with equal conclusiveness that all of the services claimed in the specification and proved were within the terms of the contract. There was no written evidence of the alleged contract. One of the parties being dead, there was no evidence from the parties themselves as to the contract or its terms. The evidence comes from the plaintiff's husband, who testified that the testatrix, Miss Carr, then a woman eighty-two years of age "offered a thousand dollars to come and have a home with us and finally we talked it over and concluded to let her come. She said she would give a thousand dollars to come and have a home with us; there was nothing said about how long the home should be for or anything of the kind." Upon this statement of the contract, conceding that the evidence must be held to conclusively establish the existence of such a contract, the question arises, what did the parties understand to be included in the term "home" which Miss Carr was to have with the plaintiff.
Occasion for discussion of the meaning of the word `home' has arisen in the construction of wills in which a home is given to one legatee at the expense of another. The word has been construed to mean merely a place of residence. Clough v. Clough,
In this case, however, although no exceptions were taken to the charge, it has been reported and it appears the issue submitted to the jury was whether the services were rendered under an agreement to pay what was reasonable with an advance payment of $1,000 to enable the plaintiff then to pay off a mortgage upon her home or whether the agreement was that the plaintiff should care for the testatrix as long as she lived, the $1,000 paid being full compensation therefor. No exception was taken to the charge and the question whether there was evidence authorizing recovery by the plaintiff upon the issue submitted is not, as has been said, raised by the exception taken. But this question has been argued and failure to consider it might give a wrong impression. The question therefore is discussed although technically not presented by the record. As already suggested, it was for the jury to find what the contract was. The services and their value were proved, from which the law implies a promise to pay what the services were worth. The defendant relies upon an express promise by the plaintiff to render the services without further compensation than the $1,000, then paid. Whether the plaintiff so promised is a question of fact. The evidence tending to prove the promise is the testimony of the husband before recited and the fact that Hannah paid the $1,000, came to the plaintiff's home to live and remained there until about six months before she died. There was also evidence from two witnesses that the deceased after occupying the home for a long time expressed the feeling that she was living on charity because she had outlived all she had paid in. The parties draw opposite *462 inferences from these statements but which inference should be drawn is for the jury to decide. Although Hannah Carr left the plaintiff's home about six months before her death because a physical injury to the plaintiff rendered it impossible for her longer to care for the testatrix, it does not appear she ever claimed that the plaintiff was liable for her subsequent support, or that her conservator, or the defendant have made such claim.
Whether Hannah Carr paid the $1,000, and came to the plaintiff's home in reliance upon a promise such as the husband's evidence tends to prove, involves probabilities of which the jury are judges. Upon this question the considerations before suggested as to the probable understanding of the parties as to the word `home' bear with more or less force. The effect of the contract, if found to be proved, was clearly explained to the jury. Whether the contract was made was properly left to them. The defendant argues that in the presence of an express promise to pay the law will not imply one. This is so, but the verdict shows that the express agreement relied on by him was not proved to the satisfaction of the jury. There was also evidence offered by the defendant of statements made by the plaintiff tending to establish the contract as claimed by him. A nonsuit is not ordered upon evidence offered by the defendant, "for the plaintiff is not obliged to yield to the evidence, and is entitled to have it weighed by the jury." Pillsbury v. Pillsbury,
Exception overruled.
All concurred.