*1
the performance
officers of
public
purely
duties
in
ministerial
their
but
it
is
character,
equally well
settled that as to
all acts
call-
necessarily
duties
ing
judgment
exercise of
and discretion on
their
will not
lie.
part, mandamus
Whilst
the writ
may
be
perhaps
awarded
set the latter
of of-
class
ficers in
compel
and to
action
motion,
upon the par-
ticular matters over which they may have jurisdiction,
interfere
will
no manner
with the exercise of that
discretion nor
or
control
dictate
de-
judgment,
cision
shall
reached.
It
be
unnecessary
quote authorities
of this
support
plain and well es-
tablished
has
principle
law; such
been the uni-
form course of all the
in this
decisions, and
case we do
not
doctrine to
denied.”
understand the
For an
of cases in
summary
which writ of man-
interesting
see illustration
cited in
damus
Common-
properly lay,
ex rel.
330 wealth
Kelley
Pommer,
439-440,
Judgment Irvine Estate. Ill *2 Marcli 1952. Argued 26, 1952; reargued October 8, Before C. Drew, J., Steen, Steabne, Jones, Bell, ey and JJ. Chius Musmanno, B.
Clarence for Nixon, Jr., appellant. R. William Jr., appellee. Dennison, 1952: Opinion by Me. Justice November Jones, Orphans’ the This is from a decree of appeal Tarr Agnes Court of Washington County awarding wife) E. Tarr sum and Edward (husband from the of Agnes Irvine, deceased, estate $3,213.82 in her board and the decedent laundry supplied room, The award lifetime the Tarrs by accepted. a claimant of time period permitted limited Alice The is appellant the statute of limitations. by heir and niece of sole her Lipps, next of kin.
The appellant contends that the proofs adduced the claimants were neither nor quantity quality required establish their claim, they failed to overcome the presumption of payment and that they also failed to rebut the presumption of satisfaction. What the evidence did qua is prove, clear and facts, precise The enough. question involved is as to the legal sufficiency proofs to imply promise to No pay. departure from the long well established rules of law relative to claims against decedents’ es- either resting parol, tates, suggested effected the result reached learned court below. the evi- auditing judge specifically found, dence the claimants supports findings, (1) and laundry furnished the decedent with room *3 years a of ten continuously period approximately over rea- to her death and that such services were prior (2) these spe- In addition to sonably week. worth $12 by facts are established the following cific findings, which was con- judge the the adjudication auditing of en banc. firmed the court by of home in the to live went The decedent, widow, there with- to live and continued the Tarrs around 1938 She 1948. May 2, her death on out until interruption mar- or blood Tarrs either not related was Tarr in the room use of a exclusive She had the riage. the freedom had and also her bedroom home as Her room. a bath included which the downstairs use of table. at their she ate supplied, the Tarrs which meals, and, her death time of the at old 78 She was with the Tarrs lived with time she the all of during move able she was weeks, few of a exception the occa- room own her up tidy house, the around laun- Her cooking. the dishes with help sionally Tarr. Mrs. was done work dry Washington, ground in owned a lot of improved two-story dwelling after with a which, Pa., pay- by her for the her was sold administrator death, per- for ment of debts the sum of She left $4,575. sonalty a total of while income, of value Her $42. per she month she the Tarrs, lived with $20 rent for house. took received as her Out she that, paid upkeep clothing, care of on her and taxes gave her real a month. She estate and Tarrs $3 in wished not to her real her convert estate lifetime, telling (an daily visitor), a friend almost who was a she Tarrs disinterested witness, “$3.00 enough,” a month for her room and it was not rent, property, by but if she . . that, sold her the time “. paid Agnes and [the Ed she wouldn’t have claimants] anything go to come and on at all.” She told another substantially thing. witness the same As was said Gibb’s Pa. 485, 487, implied “Ordinarily, pay A. 236, an exists accepted, services rendered and and the burden is person liability denying on the no to show debt was, long recognized intended.” rule fact, This has been and followed the courts of In this State. Miller’s Appeal, “Nothing was said 570-1, that, performance is better settled than that and re- ceipt furnishing services, raises implied assumpsit by compen- the one who receives to *4 legal sate the other . . . .” Such is the situation import. the established facts in this case There was relationship no between the claimants and the dece- negative legal implication dent to the that the serv- paid ices Contrary would be for. con- statement appellant’s tained in the brief, there is not a of word competent testimony in the to record show Mrs. that spent Tarr in any her had childhood time in home the of suggestion Mrs. her Irvine or under The care.
114 from
such emanates avowed not regard hearsay shown to been uttered in the Tarr have of Mrs. hearing who, objection was excluded as a witness incidentally, upon her competency. to
There is another legal that presumption, however, accepted so furnished and paid were pe- v. riodically. See Brown 278 Pa. McCurdy, Beaver Trust A. Company, 169; Winfield and Dowman A. 530, 532, Su- Ct. 2dA. 339. the learned perior 655, 658, But, think court below we that concluded, correctly, in the presumption the evidence case overcame the of As payment. already stated, findings the establish laundry that the room and work furnished the Tarrs and the were accepted by reason- That fact was ably competently worth week. $12 not It is also dispute found and is here. un- open with while Mrs. Irvine resided the disputed that, had an income of but month and per she Tarrs, $20 could for the pay- no assets that she invade capital her had of her From she keep. nothing ment income, taxes paying clothing, upkeep left after she Tarrs her and the each property gave on $3 mathematically It is thus demonstrated month. the reason- paid currently not have possibly she could the Tarrs supplying. were able worth the services so admitted to her friend expressly Mrs. Irvine Indeed, she acknowledged visitor when daily $3 Tarrs not enough was she was paying month to them when she her indebtedness recognized further the time house and lot, her if she sold that, left “to nothing have would Tarrs, she on.” and go come the Tarrs monthly payment $3 decedent’s a conclusive supporting incapable manifestly Mrs. Irvine’s acknowledg- of satisfaction.
ment her the as con- of indebtedness to unpaid Tarrs, tained in her the two statements whom witnesses, the auditor refuted the idea accredited, sufficiently that the tendered and ac- monthly payment was $3 cepted satisfaction of the As claimants’ services. rent” the a month was “for her room already quoted, $3 Dowman In according the decedent. Estate, supra, the Court said the Superior 658) (p. auditing required judge was not to conclude that even $25 monthly payment recipient lodging of board, and nursing services in full of a claim for such services made after the death. Not recipient’s only does the in the evidence instant case not disclose any agreement parties monthly pay- $3 ment was to be full satisfaction of the fur- nished Tarrs but Mrs. Irvine’s own statements refute such idea. The decedent any was, course, entitled to a credit for the monthly payments and, $3 the court that, properly below allowed her estate against reasonable worth of the claimants’ recover- able services. 68 A. 2d 42, 734,
the appellant cites factual situation presenting similar to the in point. is not It is not present, a case of a Mood relationship between the claimants and the deceased more important but, the claim still, there was founded on express an contract which the failed to prove. Where a claimant pleads, but fails to an prove, express contract but does prove performance valuable services which the beneficiary the claim cannot willingly accepted, be rested on a quantum meruit. Maxey Chief said in Lach As Justice 64 A. 2d Fleth, “Such 340, 348, 821, an ac express tion an action on a quan contract] [on meruit are utterly tum distinct” In (citing cases). Roch’s C. 16 D. & Mr. Justice Stearne,
then on the
Court
Orphans’
of Philadelphia County,
correctly said that “It
is the general
based upon
rule,
sound reason and
that one who
logic,
alleges
contract
and fails in his proofs may not thereafter
rely upon
a quantum
Witten v.
meruit,” citing
284 Pa.
Stout,
410,
Decree affirmed at
appellant’s
costs.
Dissenting
Opinion
Me.
Justice
Bell:
It has
This is a claim
a decedent’s
against
estate.
been
established for a
that claims which
firmly
century
could and
have
but
not
ordinarily would
were
been,
must
presented
clearly
the lifetime
the decedent
convincing
established
evidence
direct, positive
“evidence that
clear,
or as it is ofttimes expressed
328 Pa.
Mooney’s Estate,
and indubitable”.
precise
70 A.
v.
363 Pa.
Reed,
405,
Was the evidence claimants so clear, precise and indubitable as to establish their claim and periodic monthly pay- overcome years ments decedent to claimants for ten were made and received in full and satisfaction of all claims for the services rendered? undisputed.
The facts are Mrs. Irvine lived with Mrs. Tarr and her claimants, for the last' husband, years only ten of her life. The income she had came from a house owned which was rented for paid a month. of this Out rental, $20.00 taxes repairs upkeep and and the clothed her- house, years ten claimants a month for
self and $3.00 laundry. Solely lodging and from a mone- for board, tary-point grossly month inade- was view, $3.00 quate. Unfortunately, Mrs. Irvine died intestate morally provide failed to for the claimants as she thus personal Decedent left a estate of should have done. subse- and the aforesaid which was $42.00, house, gross. quently The balance for dis- sold $4575.00 awarded to tribution was all of which was $3265.82, quantum claim Mrs. Tarr her husband on a meruit laundry. appellant lodging The is a rarely if and heir at law of decedent whom she niece saw the of her life. ever last crystal why every Judge make clear These facts like this ease in of the claimants would to decide favor though compensation for additional demand even life- in Mrs. Irvine’s never made though Mrs. after Mrs.' Irvine’s death and even time; that “Auntie didn’t owe admitted to two witnesses Tarr except though anything funeral and even bill”; legally no evidence sufficient there was we shall see, support the claim. unsupported by any prior majority, decision language principles, contrary of all tests and *8 All prior claim. have sustained this decisions, our hardship forget Judges cases but sometimes know haunting precedents. Because create law and make bad majority my will that the decision conviction of the Courts the walls which and undermine breach century safe- and maintained to have erected over vigorously impelled to I am guard men’s estates, dead dissent. why naturally question arises first The is— object to lifetime, in Mrs. Irvine’s Tarr, Mrs.
didn’t request monthly payments, or make a these small agreement, written or an or obtain demand compensation? is the or for additional This oral, $64 majority question cannot answer. rea- which majority son have been adduced would —that money useless ask more Mrs. Irvine was to since partial pay If Mrs. unable answer. to more—is but a and Mrs. Tarr not she have said so was could satisfied, easily promised agreed pay or Irvine could have claimant at her death an additional sum or leave legacy. Why her her didn’t house or a definite Mrs. protest money Tarr for more or and ask Mrs. Irvine legacy for a if she what she was wasn’t satisfied with being paid? likely The record discloses the reason. sup- Tarr’s Mrs. sister as a lived with and was child, ported by the decedent in the latter’s home for three years; Tarr Mrs. herself as a child had lived with and supported by pe- for an undisclosed in the riod she called the decedent Auntie and time; decedent] of one [the words “she witness, practically raised her”. Isn’t it natural that Mrs. Tari* should wish to take care of Mrs. Irvine last of her life because she to return the wanted support love and affection and the care and which she and her from sister had received Mrs. Irvine!
The decree the Court below should be reversed utterly because claimant and her husband and com- payment pletely failed to overcome the in full. long wisely presump this
How can established periodic regular payments tion—that made and were accepted in full and satisfaction —be over Certainly vague equivocal come? not loose or or ambiguous or or indefinite statements: Winfield Trust Bearer 229 Pa. 79 A. Co., 530, 138; Gilbraith’s 113 A. 361; payments showing 68 A. 2d that the accepted protest had been without received *9 120
for
are now considered
tak
inadequate. Yet,
ing claimants’ evidence at its
that
is all
best,
they prod
uced.*
Before discussing tbe
it may be
evidence,
to
helpful
analyze the real
which are in
questions
If
volved.
decedent had made no
at
payments
all,
claimants would have had
to overcome
clear, direct,
precise and indubitable evidence the
that
presumption
payments were
in
regularly made
lifetime.
decedent’s
Mooney’s
Estate,
Pa., supra;
Flaccus v.
Pa., supra;
260 Pa.
103 A.
Wood,
Gilbraith’s
Es
Pa., supra; Cummiskey’s
tate,
by years, claimants of a month for 10 no with $3.00 protest money, evidence or a demand for more it is reasonably implied clear that it could not even agreed, the decedent and the claimants had when began any or at other that the services time, should be rendered at their fair and reasonable value— certainly precise there is no and clear, indubitable evi- prove agreement permit dence to such an or even to implication. such an If these clear, direct, words— positive convincing precise and or and indubi- clear, they they table say, mean what if are inter- to be preted way they have been without or deviation qualification years, for one hundred then these claim- certainly ants failed to make out a case. only completely prove any
Not did claimants fail to protest any promise or demand or or claimants, agreement by pay decedent to but the Chancellor more, specifically parties agree found and the “there is any no agreement, evidence in the case as to contract understanding, many or in so between words, decedent bearing and claimants on reimbursement claimants my their judgment, servicesThis, is an in- surmountable barrier to this claim. majority we assume
If, however, as the do that this finding only proof is not claimants’ conclusive, is an equivocal separately statement made the decedent eight to two witnesses the absence of claimant and years after the commencement of these services. This during statement was made the course of a conversa- concerning possible tion sale of decedent’s house only and was as follows: “. . . the income was out of her house which was a month . . . and she said $20.00 that that was the income she and if had, she sold again paid Agnes she it, she wouldn’t Ed, have anything go to come and on at all.” This establishes protest no and demand claimants and no or addition- any
agreement by pay merely it is al sum of definite money, indefinte; not afford could explanation why regrettably in any the Tarrs more pay money. Certainly precise event is not the positive, clear, direct, all count- indubitable required by evidence which less of this Court. even prior Furthermore, decisions this the inference from state- claimants draw is itself rebutted and overcome ment of the decedent, *11 after herself the admissions made the claimant that “Auntie did not owe the funeral to two witnesses the balance of the funeral bill”. anything, only statement, if decedent’s equivocal even Moreover, un- as related the claimants’ stood witnesses, two still fall far short would challenged unrefuted, for this Court has high proof standard of which es- a in claims a dead man’s century against required supra; tate. inter 368 Estate, Pa., Cf., alia, 350 v. Roberts supra; Estate, 363 Reed, Pa., Stafford A. 2d 812; Moore 36 Pa., supra; Estate, Copeland’s Estate, supra; 329 Mooney’s Estate, Pa., supra; 313 Pa., supra; Pa., Gilbraith’s supra. 34 Pa., Executors, Graham Graham’s In appellant Pa., supra, Mooney’s de- for rendered meruit services quantum claimed on a for companion period cedent adviser nurse, of periodic the presumption To overcome years. her testified that she knew niece appellant’s payments, her give she had to because being paid aunt not was that she and further house, carfare to to decedent’s go money get “If I don’t get my say: heard decedent I I while am living, her pay up things straightened Dece- . . . .” my it to her will certainly leave will at least $60,000., worth of an estate possessed dent died securities. marketable numerous included suffi- not nearly testimony that “The Court held per- requires support some [it] claim. . . . ciexit precise testimony and indubita- is ‘clear, tinent ” ble.’ Qilbraith’s supra, claim was In Estate 270 Pa., presented quantum for the of claim meruit value on a nursing. The witnesses board ant’s “ ‘I inter did hear alia: said, testified that paid say be would well [decedent] [claimant] . . . Mar “I I trouble to for her trouble. am a lot of know ’ ” paid.” garet get but she will well now, “ tell [decedent] Another ‘I heard witness testified: good [de- and kind to [claimant] her; that she was to me “I do not and she said know cedent] was bed, [claim- I done if it not been for what would have had pay I I her her am trouble, but will when ant], passed away be . . . for what she will well ’ ” has done for me.”
“Claimant’s ‘I than son testified: heard her more say my paid’ once mother ”. The Court would well 295) (page : “Whether the evidence submitted by plaintiff enough to rebut the *12 payment primarily question is a for the court”: . . . presump- insufficient rebut “the evidence was to periodic payments” (and tion of was likewise inade- uphold quate a to of before or after death). supra,
Braden is one of a score Pa., analogous controlling. are In cases which and (the case Mr. and Mrs. latter of Roberts, whom was decedent) presented lodg- a a niece of claim for ing general and care of the decedent under an oral con- agreed pay tract which decedent to claimants “what- right”. specific upon agreed No sum was ever was and quantum they alleged therefore sued on a an meruit, express agreement proved employment, that the reasonable rendered value was $10.00
a week. as There, here, unquestionably furnished the but this Court services, held that those facts plus decedent’s declarations were not sufficient to overcome the Chief payment. Justice Maxey “. (pages 44-46) : . . the only testimony . . . to sustain the position of exceptants as to there an being understanding agreement Lizzie between Braden, decedent, was that of [themselves] Erma Long, who testified that she heard [a servant] Lizzie Braden ‘just that: as say soon out got of there “sick [apparently she intended to see bed”] that Ida and got Jim paid well for they what ” had done for her.’ in certainly stronger fa- [This vor of claimants than the statement made decedent in the instant “. . . If claims against decedent’s es- case.] tates should be allowed on such no dece- testimony, dent’s estate would be safe from spoliation.”
The majority having no authority their support — vainly attempt distinguish Estate decision — on two grounds: (1) between the relationship claimants and the deceased in that case awas blood relationship Braden Estate (2) was not a case of meruit quantum but a suit upon contract. express A moment’s reflection will suffice to convince that a friend often closer and dearer than a but relative, in the instant case the claimant was more than a friend of the decedent —the decedent had raised “practically her” and called although “Auntie” stood obviously parentis. loco we
Although consider is immaterial to the dis- of this position whether or not the claim in case, Braden Estate was based upon quantum meruit, to the assertion contrary majority nevertheless, *13 it a claim a meruit ac- upon quantum opinion, in contention of counsel his book paper to the cording in that of the lower case, according opinion (impliedly) in Court of this Fur Court. case, Maxey it clear Chief in thermore, Justice Lach v. 361 Pa. 64 A. 2d “When Fleth, 340, 348, 821; one contracts for the services of another and receives accepts specifying those but without services, what compensation recovery shall a for the value be, quantum must an action of meruit.” This has been law centuries: see Blackstone’s page Lewis’s Vol. Commentaries, Edition, sec. III, 1154, 163.* It therefore is obvious that Braden like a score of other decisions of this controls this Court, distinguished. case and cannot be To allow Mr. and Mrs. Tarr’s claim under the loose, equivocal flimsy presented evidence in this case myriad flies the teeth of a decisions of this Court meaningless controlling and makes the clear and lan- guage opinions. inevitably of those Moreover, will safeguards weaken the and erode the barriers which for a hundred the Courts of this Commonwealth protect have erected and maintained to dead men’s es- open and will thus wide the door tates, to countless imaginary false or fraudulent claims. joins dissenting opin-
Mr. Justice this Musmanno ion. * majority opinion place Since the seems to such stress on the question quantum meruit, may say parenthetically we that we appellant assumpsit believe the does not misconceive when on a quantum (a) express meruit will lie. It is where there is an personal compensation contract services at a fixed or for a (b) legacy, sum certain or to leave a definite that an brought upon express contract; action can be and where such express alleged, plaintiff contract exists or is cannot recover upon quantum meruit; Stout, 410, Cf. v. Witten 284 Pa. 131 A. 360; Donovan, Conti Co. Inc. v. 358 Pa. A. 2d Cramer McKinney, A. 2d 374.