321 Mass. 566 | Mass. | 1947
This action of contract is brought to recover for services rendered by the plaintiff to Ingborg Johnson, who has died since the case was concluded in the court below. Her will was allowed on March 7, 1947, and letters testamentary were issued thereon to Therese J. Starr, the executrix named therein. On motion allowed by this court she has been permitted to appear and defend the action. The original defendant will be referred to hereinafter as the defendant. The declaration as amended is in two counts. The case was tried to a jury. At the close of the evidence the judge, upon motion of the defendant, directed a verdict for the defendant on the first count. The jury returned a verdict for the plaintiff on the second count. Under leave reserved the judge, upon the defendant’s motion, entered a
The.first count of the plaintiff’s declaration alleges, in substance, that "she entered into a contract with the defendant wherein, in consideration of services to be rendered to the defendant, the defendant promised that in her will she would devise certain real estate to the plaintiff and the plaintiff’s husband, and that relying on such promise the plaintiff rendered such services to the defendant from March, 1936, to April, 1943; that during said period the defendant on several occasions informed the plaintiff that she had made a will devising said real estate to the plaintiff and her husband; that in April, 1943, the defendant, without cause, informed the plaintiff that she had conveyed said real estate to another and that she had destroyed her will and that she would make no provision for the plaintiff.” The second count of the declaration added by amendment is on an account annexed for "services rendered by the plaintiff to and at the defendant’s request from August 1, 1936, to April 30, 1943, $546 per year for six years and eight months, total amount due to the plaintiff $3,640.” The answer of the defendant set up a general denial and payment. The defence of payment was waived by the defendant in open court. The statute of frauds was not pleaded in defence.
The material evidence set forth in the report would have warranted the jury in finding the following facts: The defendant and her husband operated a farm in South Brain-tree. The plaintiff was the wife of their son Elmer. In 1931 he and the plaintiff went to live in a house near his parents’ farm. From then until August, 1936, when her father-in-law died, the plaintiff rendered services to him for which she expected and received no remuneration. Shortly after his death the defendant said to the plaintiff that she had to make a new will, that "Mr. Johnson is gone ... in this
We are of opinion, however, that while the plaintiff could not recover on the first count for breach of the express contract, since the time had not arrived for performance on the part of the defendant, Daniels v. Newton, 114 Mass. 530, nevertheless, the defendant having repudiated the contract by declaration and conduct, the plaintiff became entitled to treat the contract as rescinded at once and to maintain the present action on the second count of her declaration in quantum meruit. In very similar circumstances in Canada v. Canada, 6 Cush. 15, 18, 19, the court said that "where the contract, though not fully performed, has been rescinded by some act on the part of the defendant, the plaintiff may resort to the common counts to recover for what he had done under the special agreement.” In that case the action was assumpsit in quantum meruit just as the second count in the case before us. And in Ballou v. Billings, 136 Mass. 307, 308-309, where the defendants totally repudiated all obligations on a contract for the conveyance of certain parcels of land to the plaintiff and had conveyed certain parcels of the land to others, although the plaintiff was not in default and had partly performed, the court said that the repudiation did more than excuse the plaintiff from completing a tender, even if for want of tender the time for performance on the defendants’ part had not come, that the repudiation authorized the plaintiff to treat the contract as rescinded, that part performance on the part of the party seeking to rescind
With respect to the pleadings we think that no difficulty is presented. The plaintiff had only one remedy, that on the second count in quantum meruit. It cannot be said rightly that the plaintiff had elected to stand by the contract, since she brought her action both ways. Whiteside v. Brawley, 152 Mass. 133, 134-135.
It follows from what has been said that judgment must be entered for the plaintiff in accordance with the stipulation of the parties in the amount of the verdict returned by the jury on the second count of the declaration.
So ordered.