24 Del. 355 | Del. Super. Ct. | 1910
delivering the opinion of the Court:
Two notes have been offered in evidence bearing date December seventh, 1905, and October fifteenth, 1906, made and delivered by the plaintiff to the deceased. The issue in this case is whether the plaintiff performed certain services for Thomas McHugh, during the period extending from June 1904 to December 1906, the time of his death, for which the estate of the deceased is liable. The plaintiff relies upon an implied contract. The defendant contends that no services were performed by the plaintiff for which the defendant is bound to pay. These notes are not offered for the purpose of showing a settlement between the parties, and could not be offered for that purpose at least in the present state of the pleadings. The defendant contends, however, that they show a declaration against the interest of the plaintiff. If they show or tend to show that the plaintiff did not perform the service for which he is suing or that payment for any service rendered by plaintiff had been paid they are material,*358 but we do not think they in any way show either of these facts.
The notes so far as appears at this time are evidence of a separate and distinct transaction between the plaintiff and defendant and throw no light upon the issues in this case.
The Court refuses to admit the notes in evidence.
charging the jury:
Gentlemen of the jury:—The plaintiff Henry M. White claims from Charles B. Dougherty, Executor of Thomas McHugh deceased, the defendant, the sum of $897, with interest from December 14th, 1906, being at the rate of one dollar per day, for services rendered to Thomas McHugh in his lifetime in taking care of, cooking for, washing for and in acting as a companion and an assistant to the said Thomas McHugh. You have heard the evidence as produced from the witness box, and you are ac-. quainted both with what the plaintiff has proven in the matter of services rendered, and of the contention of the defendant, in the way of defense.
Of the facts in the case you are the sole judges, When one person performs personal labor and services for another, in the absence of any specific or express bargain or agreement for the payment of the same, the law raises an implied promise on the part of the person receiving such services to pay for the same. There is however no such implied promise to pay for services rendered gratuitously that is> ■ services rendered as a matter of favor or friendship or without expectation of return or reward.
In this case the plaintiff relies upon an implied contract, there having been no express promise or understanding proven between the parties that the services would be paid for, neither has any definite price been shown as agreed upon, therefore the plaintiff, if entitled to recover, would be entitled to recover a fair and reasonable compensation for the services rendered, not however, in excess of the sum demanded, viz.: one dollar per day.
You are to determine whether any services were rendered the deceased by the plaintiff, and if any, the character and value of those services.
Verdict for plaintiff for $800.
