Thе declaration in this action of contract contains two counts. The plaintiff alleged in the first count that the testator, а married man, “permanently separated from his wife,” desired to become a member of her household for his natural life аnd to have her furnish him with care, nursing, attention and companionship, and that in consideration thereof he agreed to pay for her clothing, living, travelling and other expenses and that he would during his lifetime give her one half of his property. The plaintiff allеges that such an agreement was made between her and the testator; that she fully performed her
The jury could find the following facts: The plaintiff and the testator, Drooker, were cousins and natives of a small town in Russia. They were friendly with each other during childhood. She wаs only eleven years of age and the testator seventeen or eighteen years of age when he left Russia in 1892. He cаme to Boston where he established a successful business. After his arrival in America, he wrote to the plaintiff’s father and to the plaintiff, telling her of his affection, that he was going to be wealthy, and that she should come to America and he would marry her. The рlaintiff married another in 1900 and had seven children. She got no letters from Drooker subsequently to her marriage until after the death of her husband in 1915. She did not know how Drooker learned that her husband was dead. Drooker put an advertisement in a Russian newspapеr seeking information as to the plaintiff and she wrote him. She and her children came to America in 1920, in accordance with аrrangements made by Drooker, who paid for the transportation. He took the plaintiff to a house he had furnished, and he visited her there several times a week. She soon learned that he was married. He visited her nearly every day and some evеnings at the various other places where she and her family resided, having his meals there at times and sometimes staying over night, until 1928, when hе made his home with the plaintiff and continued to do so until he went to a hospital a few days before his death in 1930. The plaintiff for years prepared special food for him in accordance with the instructions of his physician, and cared for and nursed him. The testator supplied the furnishings for the first and second houses
The jury were instructed in various terms but in substance and effect that if the agreement between the parties was that the testator was to leave her one half of his property by his will and he failed to do so, then such a contract would be unenforceable, but that would not prevent her from being pаid the fair and reasonable value of her services under the second count. The matter was finally left to the jury that “if you find there was a contract, that the contract was based upon leaving part of the estate by will, and the contract was broken by reason of the will not having such provision, that even though the plaintiff cannot enforce the contract as a contract, the plaintiff does have a right to be awarded compensation. That compensation, if awarded by the jury, wоuld be upon the second count of the declaration.” The first count was based upon an express contract to recover the contract price, Howe v. Watson,
Thе defendants, however, were prejudiced by the jury being permitted to find for the plaintiff upon the second count, if they found that the plaintiff performed services under a contract not enforceable on account of the statute of frauds. DeMontague v. Bacharach,
We need not consider the other questions raised by the record as they may not be presented in the same form at the next trial.
Exceptions sustained.