149 Wis. 481 | Wis. | 1912
Tbe following opinion was filed January 30, 1912:
Tbe special verdict in tbis case is as follows:
“(1) During tbe vacations of Lawrence J. Vaugban, tbe deceased, during tbe six years prior to bis ordination as a priest in 1898, was be frequently at tbe borne of Catharine Murtha in tbe city of Pipón, and was be there received as a member of tbe family, and did be receive, besides meals and lodging that be chose to taire in their bouse, money from one or tbe other of them to help him, and also clothing purchased with tbe money of John Murtha, and did John Murtha pay for him a dentist’s bill of about thirty dollars ? A. Yes.
“(2) Did be promise to pay them for what they bad done for him? A. Yes.
“(3) Did said Lawrence J. Yaugban, in tbe spring of 1901, at Pipón, say to John and Catherine Murtha in substance that for what they bad done for him be would by bis last will give to John Murtha tbe sum of a thousand dollars, and did Jobn Murtha say to him at that time that that would be all right? A. Yes.”
By see. 3841, Stats. (1898), construed in Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439, tbe statute of limitations need not be pleaded against such a claim. By sec. 4243, Id., no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take tbe case out of tbe operation of tbis chapter (on limitations) unless tbe same be contained in some writing signed by tbe party to be charged thereby.
A reargument of tbis case is ordered upon tbe question
The cause was reargued on April 6, 1912.
The following opinion was filed May 14, 1912:
The respondent filed a claim against the estate of Lawrence J. Vaughan, deceased, for $1,000 upon contract hereinafter mentioned. Upon appeal to the circuit court judgment was given for respondent, and the executor appeals to this court, contending that the circuit court erred in not ascertaining and giving judgment for the reasonable value of the money paid and services performed instead of for the agreed sum of $1,000. The jury returned the special verdict set forth in the order for reargument, ante, p. 482,134 N. W. 406. We find the verdict supported by evidence. Respondent had judgment upon the verdict. The statute of limitations in such cases must always be considered although not pleaded. Sec. 3841, Stats. (1898). Therefore the serious question arising is that upon which reargument was ordered: Does the verdict, by force of sec. 4243, Stats. (1898), disclose that the right of recovery is barred by lapse of time ? We are not much aided by appellant’s brief on reargument. He failed to cite Thompson v. Orena, 134 Cal. 26, 66 Pac. 24; Chace v. Trafford, 116 Mass. 529; Bullard v. Lopez, 7 N. Mex. 561, 37 Pac. 1103; Reed v. Smith, 1 Idaho (Prickett) 533; Hill v. Perrin, 21 S. C. 356; Shapley v. Abbott, 42 N. Y. 443; or Stiles v. Laurel Fork O. & C. Co. 41 W. Va. 838, 35 S. E. 986, or the cases referred to in these decisions,.
The agreement being valid and binding, what is the measure of damages for its breach — the value or amount of the original demand or the amount of legacy promised? In a case like the present, where the promise to compensate by legacy is based upon a past or executed consideration, the recovery must be limited to. the amount of the demand so to be compensated, or the reasonable value thereof where the amount is not fixed and definite. This is ruled by Merrick v. Giddings, 1 Mackey (D. C.) 394, citing Brown v. Crump, 1 Marsh. 567; Granger v. Collins, 6 M. & W. 458; Roscorla v. Thomas, 3 Q. B. 234; Bradford v. Roulston, 8 Irish C. L. n. s. 468. See, also, 1 Parsons, Contracts (9th ed.) bottom pp. 508, 509, and cases; Wald’s Pollock on Contracts (3d ed.) pp. 199, 200, and cases.
In the cases decided by this court, although the precise question is not involved, this principle seems to have been kept
Considering the case last cited and considering this case from the viewpoint of the law of contracts above referred to as found in the cases and text-books mentioned, we must hold that the promisee suing to recover for a breach of agreement to provide for him by will, where the services are performed prior to the promise so to provide, is entitled to recover only
Tbe judgment of tbe majority of this court is that tbe respondent’s recovery is not barred under sec. 4243, Stats. (1898), notwithstanding tbe agreement to compensate by legacy was not in writing. This agreement is not regarded as a new promise within tbe meaning of that statute, but an independent and substitutionary contract within a rule which they derive from Jilson v. Gilbert, supra, and which is clearly stated in Devine v. Murphy, 168 Mass. 249, 46 N. E. 1066, and applied in Davis v. Teachout’s Estate, 126 Mich. 135, 85 N. W. 475. On this point Mr. Justice MaRshall, Mr. Justice Vinje, and tbe writer yield with some reluctance to this view.
Tbe judgment appealed from must be reversed, and tbe cause remanded with directions to try and determine tbe question of tbe reasonable value of tbe services performed for and tbe amount of money paid out at tbe request of decedent, and award a recovery against tbe estate for the amount so ascertained.
By the Court. — It is so ordered.