310 Mass. 593 | Mass. | 1942
The plaintiff sues to recover the fair value
There was evidence that the plaintiff in 1913 agreed, at the request of the testator, to do the housework at his home on two days each week and care for his wife and himself, in consideration of his promise that he would leave her all his property, and that she performed her part of the contract until September, 1931. The testator died in 1937 and the question is whether the failure of the plaintiff to continue to perform fully after September, 1931, could be found to be due to the action of the testator or to some other cause for which the plaintiff was not responsible. The defence is that she voluntarily and without any legal excuse discontinued further performance of the contract. We recite in substance the testimony on this phase of the case. A woman named Schreitmueller, a resident of Germany, visited the testator’s home in 1926. Mrs. Castor died in 1927. Castor made a trip to Europe in 1928 and again in 1931, and during his absence the plaintiff at times went to his home to look after the place. He had left his fire insurance policy with her. He told the plaintiff in 1928 that she would get all his real estate and money after his death, that Schreitmueller .was jealous of her and that he did not want any “feeling between you two girls”; requested her not to call at his home at times when Schreit-mueller was there; and then stated that his promise to give her his property would be carried out. The plaintiff testified that her services were partially but not fully terminated in 1931, that she performed services “off and on” after 1931; that her visits thereafter were social; that she did whatever he wanted her to do; that subsequently to
The contract which,the plaintiff alleges she made with the testator became unenforceable in so far as it provided for the payment of her services by a testamentary provision, where, as here, the statute of frauds is set up in the answer; but upon full performance of .the contract she could recover the value of her services on the ground that the promised consideration had not been paid. Donovan v. Walsh, 238 Mass. 356. Dixon v. Lamson, 242 Mass. 129. Raine v. Shea, 259 Mass. 412. Rizzo v. Cunningham, 303 Mass. 16.
While inability to perform on account of illness or disease is a sufficient excuse for further performance, yet the voluntary and deliberate refusal of one to continue to furnish services in accordance with the contract, in the absence of any justification based upon the conduct of the other, will bar recovery not only under the contract but also upon a quantum meruit for the value of the services already rendered. Stark v. Parker, 2 Pick. 267. Olmstead v. Beale, 19 Pick. 528. Davis v. Maxwell, 12 Met. 286. Homer v. Shaw, 177 Mass. 1. Sipley v. Stickney, 190 Mass. 43. Smedley v. Walden, 246 Mass. 393. Divito v. Uto, 253 Mass. 239. Glazer v. Schwartz, 276 Mass. 54.
Plaintiff’s exceptions overruled.
Defendant’s exceptions waived.