72 Pa. Super. 326 | Pa. Super. Ct. | 1919
Opinion by
The plaintiff brings this action of assumpsit to recover from the estate of the defendant’s decedent compensation for services alleged to have been rendered by her to the said decedent and his wife during the lifetime of the husband. She was the sister of the decedent’s wife and, prior to her going to his house in 1908, lived in the City of Buffalo. In November of that year the wife of the decedent became sick and the plaintiff, at the request of
The evidence discloses no agreement between the parties fixing the amount of compensation she was to receive but does satisfactorily establish that she was to be compensated for her services; in other words, that the relation of debtor and creditor existed. It also makes plain, from all of the declarations of the decedent upon which the plaintiff relies, that whatever compensation the plaintiff was to receive, in addition to her boarding, lodging and clothes, was to come to her by some testamentary disposition of his property, effective, of course, only after his death. In his will the testator gave to her a money legacy of five hundred dollars as well as certain furniture which we suppose to have been sufficiently described in the will. It is not before us. The plaintiff was not satisfied with these legacies. She employed counsel either to procure for her a settlement that would be, in her judgment, adequate, or to bring an action to enforce what she believed to be her claim. After some' negotiations between her counsel and the representative of the estate, a settlement was arrived at under the terms of which it is claimed she was to receive her money legacy, the additional sum of two hundred and fifty dollars in cash, and fifty dollars in lieu of the furniture specifically bequeathed to her, which she did not care to have.
It is agreed she signed in blank and delivered to her counsel, for some purpose, two receipts. The bodies of these receipts were written over, her signature by her own attorney and delivered to the representative of the estate who in turn paid over the sum of eight hundred dollars in cash. We quote the receipts. “Received, March 12, A. D. 1915, of Joseph Sobelewski, Executor of
There is evidence from which the jury could ascertain the period of time during which services were rendered to the decedent’s wife, the nature of those services, and the reasonable compensation earned by the plaintiff. The verdict, however, is in a lump sum and it cannot be determined what portion of it was awarded to the plaintiff because of such services. The evidence reasonably tends to show that after the death of the wife the plaintiff remained in the home of the deceased until his death in 1915 and continued to perform the duties of an ordinary domestic servant. We find nothing in the record that would fairly enable the jury to ascertain from the evidence the reasonable value of such services as distinguished from others for which she claims. The evidence is extremely vague and unsatisfactory as to the physical condition of the decedent during the six or seven years the plaintiff continued to live with him and render do
Now it is clear from the testimony offered by the plaintiff herself that the compensation she had agreed to accept was to be made by some testamentary provision in her favor. From this it would seem to follow that the legacies given to her by the will of the decedent ought to be regarded as an attempt at least on his part to execute the agreement he had made. We may concede, for the purposes of this case, that she was not concluded by these provisions if she were able to show that in fact they were inadequate to satisfy the legal obligation of the deceased to reasonably compensate her. We do not think, however, she is in a position to regard them as mere gratuities and recover in addition to them the full amount of the wages she may have earned. They at least should be a credit pro tanto on the amount of her compensation.
Now it is agreed the plaintiff signed two receipts in blank for some purpose. She delivered them in that condition to an agent of her own selection. It is hard to see why it was necessary to employ counsel at all merely to obtain the legacies named in the will about which there was no dispute whatever. Again, if her purpose was merely to deliver formal receipts for these legacies, the amount of which was known, it is not apparent- why the receipts could not have been filled out before signature. These circumstances indicate strongly that some discretion was to be exercised by her agent in agreeing to the amounts for which the receipts were to stand. The
But there is another element in the transaction which we do not feel at liberty to ignore. The agent of the plaintiff certainly made a settlement for her of an unliquidated claim against the estate of the decedent. By virtue of that settlement she received the sum of eight hundred dollars in cash to which the will in terms gave her no title. If she is at liberty to repudiate the act of her agent, she must repudiate it entirely. She cannot ratify it in so far as it was advantageous to her, retain the fruits of it and then deny his authority to finish the settlement. If she is to be permitted to go behind the written evidence she has made, the defendant executor should be restored to the status he occupied before any settlement was attempted by the agent. As we have said, the testimony upon which she must rely to make out any claim shows that she was to be paid by a legacy. How can she then assert the legacy was a gratuity and had no relation whatever to the services rendered by her and should not be regarded as compensation at least in part for such services? At the trial the agent who represented her in this settlement seemed to be unable to give any testimony of any value to any person. On the motion for a new trial an affidavit made by him was presented to the learned trial 'judge. It is quoted in his opinion overruling the motion. Had the witness testified at the trial to the facts set forth in that affidavit, it appears to us to be more than likely a different verdict would have been rendered.
Because of the several considerations to which we have adverted we cannot escape the conclusion that the case was tried upon the wrong theory and that the record, as it is now before us, fails to furnish a satisfactory foundation for the verdict upon which judgment was entered. We must therefore send the case back to be tried along the lines' here indicated so that whatever verdict may be rendered upon such new trial will be more clearly respon
The judgment is reversed and a venire facias de novo awarded.