263 Mass. 583 | Mass. | 1928
This is an action of contract to recover from the defendants, as administrators of the estate of Philip Castleman, for services rendered to the decedent. The declaration was in three counts. The first alleges, in substance, that about'July 1, 1914, the intestate, who was a physician, promised the plaintiff that if she would take care of his rooms, answer the telephone, tend the door and receive his patients
The jury found for the defendants on the first count and for the plaintiff on the second and third counts, and assessed damages in the sum of $2,350.67. Thereafter the judge, on motion of the defendants, refused, subject to their exception, to enter a verdict in their favor on the second count.
The only exceptions relied on by the defendants are to the refusal of the trial judge to order judgment in their favor. Their contention is that, as the jury found in their favor on the first count which alleged a special contract, as matter of law the plaintiff could not recover on counts two of three. This contention cannot be sustained. If the plaintiff failed to establish the special contract declared on, she could recover upon the second and third counts if, in the opinion of the jury, the evidence warranted a recovery. Harrington v. Baker, 15 Gray, 538. Fitzgerald v. Allen, 128 Mass. 232. Simmons v. Lawrence Duck Co. 133 Mass. 298. Manilla v. Houghton, 154 Mass. 465.
The jury might have refused to believe that the decedent agreed to pay the plaintiff at least $10,000; if so, they would not have been warranted in finding for her on the first count.
The defendants rely upon the decision of Greene v. Boston Safe Deposit & Trust Co. 255 Mass. 519. In that case it was not disputed that the plaintiffs had performed their part of the agreement, if one were made. It is expressly stated in the opinion that there was evidence from which the jury could have found that the defendants’ testator had fully performed his obligation to the plaintiffs. If the jury so found, it is plain that the plaintiffs could not recover either upon the special contract or upon a quantum meruit. The facts in that case are plainly distinguishable from those in the case at bar. There is no evidence in the present case which would have warranted a finding that the plaintiff ever received $10,000 or any other sum as compensation for services rendered by her to the decedent. Accordingly the finding for the defendants on the first count was not a bar to a finding in the plaintiff’s favor on the second and third counts. Manilla v. Houghton, supra. Altman v. Goodman, supra.
Exceptions overruled.