174 S.W.2d 517 | Ky. Ct. App. | 1943
Affirming.
The appeal is from that part of the judgment of the Fayette Circuit Court in the final settlement of the estate of Olivia E. Israel, deceased, allowing Nannie D. Rice to recover from the the administrator the sum of Twenty-One Hundred Dollars ($2,100) for extraordinary services rendered the decedent within the five (5) years next before her death. For the last seven (7) years of her life the decedent made her home in the residence of appellee. She originally agreed to pay appellee the sum of Fifteen Dollars ($15) per month, which it is claimed was for room and breakfast only. After two or three years she became more or less enfeebled, gradually grew worse, and finally died, while still a resident in the home of appellee.
The proof shows that for the last five (5) years of Miss Israel's life, appellee furnished her three meals a day, massaged her body to alleviate suffering from rheumatism, nursed her in frequent illnesses, carried water to her room, bathed her feet at night, helped her dress, cleaned her shoes, washed, ironed, and mended her clothes, and generally served her in an extraordinary capacity. There was no specific contract to pay for these *362
extraordinary services, but they were demanded by Miss Israel and performed by Miss Rice. While the proof as to the consideration for the payment of Fifteen. Dollars ($15) per month is meager, the evidence is uncontradicted that, for the first few months of the period of time she was a roomer in Miss Rice's home, the only consideration Miss Israel received for the payment of the Fifteen Dollars was the service of breakfast and use of a room, which she was required to keep in order herself. This evidence, we think, uncontradicted as it was, is sufficient to establish the fact that such was the full service contemplated by the parties under the contract for the payment of Fifteen Dollars per month; and, while we are cognizant of the rule that, in the case of a claim for services rendered outside and beyond the express agreement for like or similar services, the evidence must be strong, decisive, and convincing (Flynn's Executor v. Mullett,
Under the circumstances of this case, we are of the opinion that there was an implied contract on the part of Miss Israel to pay Miss Rice the reasonable value of the extraordinary services rendered her, and that they were not covered by the contract which she discharged by the payment of Fifteen Dollars per month. Dean's Ex'r v. Griffin,
In Kellum v. Browning's Adm'r, supra, the Court said: "Thus, where one performs labor or services for another with his knowledge and assent and under circumstances which ordinarily call for payment, there is a presumption that the beneficiary intended payment and that there was an assent of minds as to this." In Marcum's Adm'x v. Terry,
The value of the additional services was fixed by the Master Commissioner, and approved by the Court, in the sum of Twenty-One Hundred Dollars ($2,100) for a period of five (5) years. We consider this evaluation to be reasonable.
Wherefore, the judgment is affirmed.