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,39 N.H. 259, 267, 268. The claim is that the facts alleged constitute part performance sufficient to take the case out of the statute. There is no allegation that any improvements have been made by the plaintiff or that she has entered into possession. Part performance of a contract within the statute of frauds is not sufficient to take the case out of the statute unless it places the party in a situation that will operate as a fraud upon him if the agreement is not performed. Tilton v. Tilton, 9 N.H. 385, 390; Kidder v. Barr, 35 N.H. 235, 255; Johnson v. Bell, 58 N.H. 395; Abbott v. Baldwin, 61 N.H. 583, 585; Seavey v. Drake, 62. N.H. 393; Stillings v. Stillings, 67 N.H. 584, 586. Therefore, mere payment of the purchase money is not sufficient to authorize a decree for specific performance. Brown v. Drew, 67 N.H. 569; Ham v. Goodrich, 33 N.H. 32, 39; Glass v. Hulbert,102 Mass. 24, 28. The fact that the payment
was made in labor instead of money is not material. Peters v. Dickinson,67 N.H. 389. The plaintiff concedes that if the services forming the consideration of the contract are of such a character that they may be estimated and their value liquidated in money, the contract is within the statute. Her claim is that where the services rendered are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and where it is evident the parties did not intend to measure them by any such standard, it is impossible adequately to compensate the party performing the services except by a decree for specific performance, and it is urged that the performance of such a contract upon one side takes the case out of the statute, because the party performing is thereby placed in a situation that will operate as a fraud upon him because of the inadequacy of pecuniary damages to effect such compensation as will prevent the fraud.
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, 62 N.H. 577, 580.
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, 33 N.H. 32, — the care, support, and comfort of the plaintiff's father as a member of the plaintiff's family. In that case it was determined (p. 44) that the services were not of a character to require specific
performance, and that the law provided a full and adequate remedy in the way of compensation in damages. This case is a decisive authority against the plaintiff. Rhodes v. Rhodes, 3 Sandf. Ch. 279, relied upon by the plaintiff, so far as it is in conflict with Ham v. Goodrich, cannot be followed here without overruling the latter case. The majority of the cases in which the doctrine of Rhodes v. Rhodes has been approved are clearly distinguishable from the present in that they present facts warranting the inferences that the services forming the consideration for the contract of conveyance were not intended to be measured by a pecuniary standard and are not capaple [capable] of such admeasurement. In the case of a contract under which the relation of parent and child is assumed, under the agreement that the child shall receive all the property of the other at death, the consideration of the contract is not so much the personal service of the child as it is the assumption of the filial relation. In such case, it may be argued with great force that the value of that relation to the recipient of such services as naturally flow therefrom is not susceptible of measurement in money. The fact that the consideration for such services or the assumption of such relation is all of the property remaining at death, naturally an undetermined and indefinite amount, may also authorize the inference that the parties did not intend or expect remuneration for the services rendered according to their pecuniary value. Such are the facts in all the well considered cases in which the doctrine of Rhodes v. Rhodes is followed. Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Van Dyne v. Vreeland, 11 N. J. Eq. 370; S.C.,12 N.J. Eq. 142; Wright v. Wright, 99 Mich. 170; Svanburg v. Fosseen, (Minn.) 43 L.R.A. 427; Kofka v. Rosicky,41 Neb. 328.
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, 31 Kan. 283. Nothing is alleged or urged in the present case of any peculiar relationship between the parties the value of which is immeasurable in money. The knowledge and acquaintance of Batchelder with the plaintiff, and his consequent desire to secure her services alleged, would tend to establish a willingness on his part to pay a greater sum therefor. While these facts might enhance the value to him of the services rendered, they do not cause such value to become incapable of pecuniary estimation. Whether services rendered under the peculiar relations of the cases cited can or cannot be estimated in money, and whether in equity part performance of such a character is an answer to the statute of frauds, are questions not decided and upon which no opinion is intended to be expressed.
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, 62 N.H. 169. In the prosecution her claim in the ordinary mode, the plaintiff has an ample remedy, and in such proceedings can recover upon proof of the facts stated the reasonable value of her services. Howe v. Day, 58 N.H. 516. Upon the trial of that question, the value of what she may prove Batchelder contracted to pay will be evidence in connection with the fact whether the services were rendered for greater or less time than could reasonably have been expected when the contract was made, and were more or less arduous than could reasonably have been understood they would be, to be weighed with other evidence tending to show what her services were reasonably worth. Ham v. Goodrich, 37 N.H. 185; Emery v. Smith, 46 N.H. 151. The recovery may be for less or more than the value of the land. It perhaps may be inferred from the bringing of the bill that the plaintiff expects to recover less, but a jury may take a different view.
Bill dismissed.
All concurred.