Viley v. Pettit

Feb 8, 1895
Versions:29 S.W. 438
1895 Ky. LEXIS 123
96 Ky. 576
JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

The petition to which a general demurrer was sustained. by the lower court, is as follows:

“Plаintiff, Willa Viley, says that prior to and on February 9, 1893, he was engaged in the city of Lexington in conducting a general real estate business, ‍​‌​​‌‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​​‌‌‌‌‌‍including the buying and selling for others of real estate in that city and county of Fayette and elsewhere, upon commission, which faсts were then known *578to the defendant, William Pettit; that while engaged in said business'he performеd services for the defendant with his consent, in endeavoring to effect a sale fоr him of his farm, situated in the county of Payette, containing three hundred and forty-seven acres, one rood and one and four-tenths poles of land, being the same upon whiсh defendant lately resided; that through his said services and efforts a sale of the said farm was made, and the defendant, accepting plaintiff’s said services, consummated said sale, and on February 9, 1893, through the said services and efforts of plaintiff, said farm was sold for the sum of forty-three thousand four hundred and seven dollars and thirty-four cents.

“Plaintiff says that his sаid services were reasonably worth the sum of eight hundred and sixty-eight dollars and fourteen cents, and by reason of the fact» aforesaid, the defendant ‍​‌​​‌‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​​‌‌‌‌‌‍on February 9, 1893, became indebted to plaintiff in said sum, which he then undertook and promised to pay, but no pаrt thereof has been paid, although payment has been demanded.”

It seems to be substantially stated in the petition that through services of plaintiff as a real estate agent a sale of the farm was made; that defendant accepted and availed himself of the services ; and in consideration thereof promised to pay the amount sued for. And upon proving each of these facts plaintiff will be entitled to recover. For if sale of the farm was. effected by services and efforts of plaintiff, and defendant, accepting the services, consummated the trade, there existed a sufficient consideration to support his promise to pay.

■ 'But wo'do not agree with counsel that, from the facts *579stated, there arises a legal implication that defendant requested plaintiff to perfоrm the services in question for him, and, as a consequence, became bound by an imрlied undertaking to pay therefor. As argued, it is a general rule, founded upon commоn sense and common justice, that the law will imply both a request and promise by one who, knowing all the facts, stands by consenting, when it is his duty to object; to services rendered for his bеnefit and advantage by another. But in order to create liability in absence of an express request and promise to pay, relation of the parties and cirсumstances under which the services are rendered must be such as to show not only the services were for benefit of the person receiving, ‍​‌​​‌‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​​‌‌‌‌‌‍them, but that he knew, or had reаsonable grounds to believe, the person rendering them expected to be рaid therefor. And no better illustration of the danger and injustice of implying a request and рromise to pay for services rendered, simply because no objection is mаde, could be afforded than is done by this case; for the very business appellant is еngaged in — that of buyer as well as seller on commission of real estate — may exact of him allegiance and devotion to 'the exclusive interest of the vendor or purchaser, as he may be employed by one or the other, and there is nothing in аppellant’s petition repelling the idea he may not, in this instance, have beеn in the service of both buyer and seller of the land.

It seems to us mere consent by one that another may render unsolicited services in relation to his business affairs, is not enough to raise an implication of request and promise to. pay. There must be a dis*580tinсt allegation of benefit, and sncli condition and relation of the parties as ‍​‌​​‌‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​​‌‌‌‌‌‍tо show an understanding or expectation by them the services would be paid for.

In our оpinion, whatever cause of action the petition states is based upon thе express promise alleged, and as plaintiff may recover upon proоf of it, the lower court erred in sustaining the general demurrer.

Wherefore, the judgment is reversed, and cause remanded ‍​‌​​‌‌‌​‌​​​‌​​‌​​​​​​​​‌‌‌​‌​‌​‌‌‌‌‌​​‌‌​​‌‌‌‌‌‍for proceedings consistent with this opinion.