345 Mass. 709 | Mass. | 1963
These are the plaintiff’s exceptions to the direction of verdicts for the defendant on the plaintiff’s opening statement to the jury.
The opening stated facts, within count 1 of the declaration, in part as follows: The parties are sisters. In 1942, while the sisters’ father was living with the defendant in Gloucester, the defendant took a new job in Salem and wished to move to Ipswich where her husband worked. She
In 1957, while the father was in a nursing home after a stay in the hospital of several months, the defendant obtained the father’s signature on a “folded over” paper which was, in fact, a deed which transferred the ownership of the house into a tenancy in common, but which he was told was a paper which “will get you some money from the City.” The hospital then attached the house for the amount of the hospital bill. When the father was informed what the paper was, he immediately recreated the joint tenancy. The action by the hospital is pending; the amount of the attachment is $2,000.
The defence of the statute of frauds, duly pleaded, is inapplicable. Even if the promisee had been the creditor, the case would fall “within a class ... in which the essence of the transaction is . . . the obtaining of some . . . benefit, by the promisor from the promisee, and the payment of the . . . debt of a third person in accordance with the promise is merely incidental and not the real object of the transaction.” Colpitts v. L. C. Fisher Co. 289 Mass. 232, 234. See for comprehensive review of our cases, ibid., 234-237. See also Shawsheen Manor Corp. v. Colantino,
The defendant contends that the direction of a verdict was right as no damages are shown to have resulted from the breach of the contract to pay the hospital bills. We disagree. The existence of the encumbrance on the plaintiff’s real estate is a harm for which in contract the plaintiff would be entitled to at least nominal damages. Corbett v. Berman Shoe Co. 338 Mass. 405, 412. Holt v. County Bdcst. Corp. 343 Mass. 363, 366. If, as is likely, the precise damages will be determined before the case is tried, the plaintiff, having had a cause when the writ was brought, may show such damages. She was not obliged to wait, before bringing suit, until the hospital’s action went to judgment with the possibility of being unable to prevail against an asserted defence of the statute of limitations. Although set up in the answer, the defendant rightly does not now argue that the statute of limitations is a bar, the hospital services having been rendered in 1957 and the action begun in 1960.
It does not defeat the contract that both sisters in certain circumstances were under a statutory obligation in respect of the care of a parent, or that the agreement and their conduct under it, and apart from it, showed that each recognized a moral obligation. This particular arrangement at the defendant’s request served her purpose at the time, and could be embodied in an enforceable contract.
The second count is in quantum meruit. We see no basis for such recovery on the facts stated in the opening but leave the disposition of the count to the trial judge on a retrial.
Exceptions sustained.