105 Wash. 698 | Wash. | 1919
Dissenting Opinion
(dissenting)—This action was brought, tried and argued on the pretension that there had been an express contract to pay Hooker for his services, or, at least, an implied agreement which would entitle him to recover on “quantum meruit.” We agree with the majority that “there is no proof of an express contract by Mrs. Wharton to pay Hooker for his services, other than her statement to him, at the time of delivering the notes for $10,000, that it was in accordance with a promise to her husband to compensate him for his past services.” Nor is there anything in the evidence showing an implied contract by Mrs. Wharton to remunerate Hooker, upon which an action of “quantum meruit” could be based, and, so agreeing, we think the action should have been dismissed. The majority, however, are allowing a recovery, not on an express or implied contract to pay for services, but on the strength of a promise made by Mrs. Wharton to her husband, sometime before his death, to pay Hooker a specific sum. As we view it, Hooker is not entitled under the law to the receipt of this sum, which the complaint does not even claim for him, and, certainly, under the facts, he merits nothing further than he has already received. The facts do not support the charge of respondent Hooker of $10,000 as a valid indebtedness of the estate of Mrs. Wharton. It is true that a specific sum of $10,000 occurs in various transactions between Mrs. Wharton and Hooker; the execution of subsequently revoked wills bequeathing that specific sum, and the delivery by Mrs.
Chadwick, C. J., and Holcomb, J., concur with Mackintosh, J.
Lead Opinion
On Rehearing.
Upon rehearing En Banc and a careful reconsideration of the whole subject-matter, the majority of the- court adheres to and reaffirms the views heretofore expressed in the opinion which will be found in 102 Wash. 321, 172 Pac. 1173.
Main, Tolman, Mount, Mitchell, and Parker, JJ., concur.