45 A. 249 | N.H. | 1896
It is conceded upon the briefs and in argument that the contract upon which the plaintiff relies was not reduced to writing. The point argued is whether, upon the facts stated, specific performance of an oral contract to convey land by will can be decreed. We have therefore considered the substantial controversy between the parties without reference to the technical question whether the bill containing no allegation that the contract relied upon was reduced to writing, is not sufficient upon demurrer. P. S., c. 215, s. 1; Bro. St. Fr., s. 505; Walker v. Richards,
Whether upon this ground specific performance of an oral contract to convey land can be decreed, a point upon which the authorities are in conflict (Bro. St. Fr., s. 463, and note), it is now unnecessary to decide, because we are satisfied that the services described in the bill do not support the claim. The averment in the bill that since the services were of a personal nature their value cannot be ascertained or estimated in money, and that compensation therefor cannot be adequately made except by the specific performance of the contract, is one of argument by inference from the facts stated. The facts positively averred do not warrant and support the inference. Clark v. Manchester,
It is not averred, nor do the facts support the inference, that the parties did not contemplate the measurement of the value of the plaintiff's services by a pecuniary standard. The contract alleged, in substance, is that the plaintiff agreed to furnish Batchelder with board and lodging, nursing in sickness, the use of a barn, and entertainment for his friends, for which Batchelder agreed to pay her three dollars and a half a week and to convey to her, by will, one of two tracts of land in each of which he owned an undivided half. The plaintiff had no occupation of the land; in fact, it was never determined to which tract Batchelder would obtain the whole title. No facts are alleged from which it can be inferred that either the plaintiff or Batchelder regarded the land in any light except as further compensation to the extent of its pecuniary value, in addition to the weekly stipend. The services under consideration do not differ from those relied upon in Ham v. Goodrich,
While there are cases in which facts substantially like the present have been held to avoid the bar of the statute under the authority of Rhodes v. Rhodes, such result is clearly beyond the principle of that case, and its applicability to cases of this character has been expressly denied. Baldwin v. Squier,
In the case before us "There is nothing to show that the value of the plaintiff's services cannot easily be determined and she awarded compensation therefor. In other words, it was simply a payment of the consideration in services and not in money." Baldwin v. Squier, supra. In the words of the Kansas court, "we do not think the difference in the manner of payment ought to take the case out of the statute," especially where, as in this case, as before suggested, the proposed services were evidently measured between the parties by a pecuniary standard.
The plaintiff does not need this bill to enable her to maintain her claim against the executor for compensation for the services rendered. A bill in equity cannot be maintained to recover a claim against the estate of a deceased person when the creditor has an ample remedy by proceedings in the probate court. Joslin v. Wheeler,
Bill dismissed.
All concurred.