SUSAN E. CHANDLER & another vs. WILLIAM L. BAKER, administrator.

HAMMOND, J. This is an action of contract tried before a justice of the Superior Court sitting without a jury. The ad damnum of the writ was originally $50,000, but after the entry of the action it was changed by permission of the court, on motion of the plaintiffs, first to $100,000, and afterwards to $200,000. The original declaration was in three counts, of which the first was on an account annexed for services rendered to Albert S. Bird, the defendant's intestate, from October 1, 1897 to February 25, 1903; the second was on quantum meruit for labor performed and services rendered to the defendant's

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intestate for the same time; and the third alleges that in September, 1897, Bird entered into an agreement with the plaintiffs by which, in consideration that the plaintiffs would give up their homes and their occupation and enter his family and care for his household and for himself during his lifetime, he would pay to the plaintiffs such sums as their services were worth; that in pursuance of this agreement the plaintiffs did give up their homes and their occupations and entered into the family of Bird on or about October 1, 1897, and devoted their whole time, energy and strength to the care of Bird and his household until his death, which occurred on February 25, 1901. In each count the sum sought to be recovered was named as $100,000. The declaration was subsequently amended by changing the amount sought to be recovered in each count from $100,000 to $200,000; and by the addition of a fourth count in which it was alleged that in September, 1897, Bird entered into an agreement with the plaintiffs by which in consideration that the plaintiffs would give up their homes and occupations and enter his family and care for his household and for himself during his lifetime he would pay to the plaintiffs a sum not less than $200,000, for their services; and the plaintiffs, in consideration of this promise, did give up their homes and occupations and enter his family and care for his household and for himself during his lifetime, and thereby became entitled to receive from the defendant as administrator the sum of $200,000. The defendant's answer as amended admitted that the defendant was the administrator, contained a general denial, and pleaded payment and the statute of frauds.

At the conclusion of the evidence the defendant made seven requests for rulings, all of which, except the third, were refused; and there was a finding for the plaintiffs for the sum of $102,169.50. The case is before us upon exceptions taken by the defendant to these refusals.

Many of the facts seem to be uncontroverted. In September, 1897, Mr. Bird, then about fifty-seven years of age and apparently not in robust health and not actively engaged in business, was living where he had been living for several years, in good style, in a commodious house in Brookline. His wife had died a year before, and there was no one except

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servants to look after the house; and the cook, whom he had had in his employ for some years, was getting discontented and had threatened to leave "unless some one who was able to take care of the house came right away." In this gloomy crisis in his household affairs he began to think of help and companionship, and in this connection his mind turned toward the plaintiffs, who were then living in a moderate home in Plymouth. They were distant relatives of his wife, and during her life had been frequent visitors at his house. Susan was earning about $600 a year in teaching music, and Mary about $400 as a teacher in one of the public schools of Plymouth. Bird visited them there, and, stating the condition of things in his house, asked them to come and be members of his household. They at first declined, but after a conversation the precise tenor and legal effect of which is in dispute, they agreed with him to come; and about October 1 of the same year they came to his house and stayed there until his death in February, 1901. They came not as servants, but as members of his household and upon social equality with him. They took charge of the household affairs, giving directions to the servants, and, by reading aloud to and driving with him, playing on the piano, talking with him, and in many other ways looking after his comfort, did what they properly could to care for him and entertain him and make his home pleasant. While not in robust health he does not seem to have had any serious illness until November, 1900. Everything seems to have been pleasant and both he and the plaintiffs were satisfied. From time to time he made them presents of personal estate, and he made to Susan a deed of land with a house thereon situated on Cypress Street in Brookline, worth perhaps $9,000. During this time he had horses, carriages and a coachman, and was worth perhaps $200,000 or more. He drove out often, almost always accompanied by the plaintiffs. We do not understand that the defendant contends that the plaintiffs did not do their duty, or that Bird did not receive all the care and companionship that he could reasonably expect, or that he was not perfectly satisfied. The plaintiffs testified that they were pretty closely confined to the house, especially in the evening, and that in this respect he was somewhat exacting. In this way and in this relation the plaintiffs lived in this house from

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about October 1, 1897, to February 25, 1901, the day of the death of Bird. After his death they continued to live there a few months, when they moved away, finally going to the house in Cypress Street, where they have since lived. They took with them as their own many pictures, some of considerable value, under a claim that these had been bought by Bird for them and given to them while they were living in his house. Two of these pictures they afterwards sold for $10,000, and there was evidence that the others were worth in the aggregate from $15,000 to $20,000. There was evidence that Bird paid for the pictures carried away by the plaintiffs over $30,000. He had also transferred to Susan a trust agreement made by and between him on the one hand and Baker and Briscoe on the other, by which an annual payment of $750 was to be made by the latter for twenty years; and also the promissory note of a third party for $5,000, upon which, however, she realized only $700. Certain small balances from moneys handed by him to them for household expenses and not used by them for that purpose had been by his consent retained by them for their own personal use. The evidence tended to show that in these various ways property costing over $60,000 was given and transferred by Bird to the plaintiffs while they were in the house with him. Shortly before his death he sold a lot of land, receiving back in part payment therefor a promissory note for $40,000, secured by a mortgage of the land, and there was evidence tending to show that he intended to transfer the note and mortgage to the plaintiffs, but that he waited for the return of the mortgage from the registry and died before it was returned.

The defendant was appointed administrator on February 28, 1901, and this action was brought on February 19, 1903, about ten days before the expiration of the term fixed by the statute of limitations. The trial took place in December, 1904, with the result above stated.

The whole evidence is before us. It was entirely oral, and came chiefly from the plaintiffs themselves, who testified to conversations between themselves and Bird, at which no one else was present.

Was there any agreement express or implied between Bird and the plaintiffs that the latter should receive compensation,

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and if so, what was it? Inasmuch as the finding was for the plaintiffs, it is clear that the judge found that there was no agreement that the services should be rendered gratuitously, or in sole reliance upon such gifts as Bird should voluntarily make to the plaintiffs in his lifetime, with no obligation on his part to give anything. The services were not rendered gratuitously. The plaintiffs were to be paid. In so finding, the judge was justified by the evidence.

But how were they to be paid? There is much evidence tending to show that the agreement was that Bird should make a testamentary provision for the plaintiffs, and that they relied on that alone for their remuneration. The evidence would justify a finding either way on that point, but inasmuch as the judge gave the third ruling requested by the defendant, which was in substance that if the services were rendered upon any such agreement then, since it was not in writing, this action could not be maintained, (R. L. c. 74, § 6,) it is manifest that he found there was no such agreement. We cannot as matter of law disturb his finding that way.

We have then the ordinary case of services rendered under an agreement express or implied for compensation not testamentary in its nature. The first and second counts of the declaration are substantially the same and could be sustained either by proof of an express contract to pay the sum named, or by proof that the services were worth that sum. Manilla v. Houghton, 154 Mass. 465, and cases there cited. The third is on quantum meruit, and the fourth on a special contract to pay "not less than $200,000."

It is difficult to see how upon the evidence it could be found that there was any express contract to pay a definite sum or a sum "not less than $200,000," or to give or deliver to the plaintiffs any particular thing or any fractional part of his estate upon which a value can now be placed. Assuming that the services were to be paid for and not by testamentary provisions, the most natural explanation of the evidence would seem to be that there was no definite agreement as to the amount of compensation, and that the plaintiffs must stand upon quantum meruit. But however that may be, it is certain that the evidence would warrant a finding upon quantum meruit, and there

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is nothing to show that the general finding for the plaintiffs was not based upon that ground. In that state of the evidence the defendant requested the judge to rule that "if the plaintiffs rendered the service disclosed in the evidence without any agreement with the defendant's intestate, then that they are entitled to recover only such sum as the services were actually worth." The judge refused to give this ruling. It is argued by the plaintiffs that if the first part of this request "is to be interpreted literally it includes both express and implied agreements, and . . . would call for a ruling that the plaintiffs would not be entitled to recover at all." But we think that the request, taken in connection with its setting, is to be construed as meaning that if there was no express agreement as to the amount of compensation then the basis of it must be what the services were actually worth. It is to be noted that during the trial the judge had said that the question was "What did he [Bird] lead them to believe they were to have to live on in the future if they were to come there and stay with him. I can't think of any other way that we can get at it." He had said also, at the same time, during the trial, "They didn't make a definite statement as to the amount; I am in doubt whether it could be said there was an understanding on their part. Supposing he had said he was going to give them the greater part of the property if they would come there, that would be one way to reach it perhaps; but I don't know as that would be very definite; it isn't very easy to determine." It seems reasonably clear that the defendant was apprehensive that, owing to the peculiar circumstances of the case and the vague and indefinite nature of the evidence as to the agreement for compensation, if the judge should come to that question, there was danger that the view might be taken by the judge that, in the absence of any agreement for compensation except that implied by law from the employment, he might adopt as the rule of damages not what the services were actually worth, but, instead thereof, what the plaintiffs supposed they were to receive, although there was no agreement about it. If there was no agreement for compensation excepting that arising in law out of the employment, then in this action the only basis of compensation was what the services were actually worth. It is true that upon the

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question of the value of services, especially such as were rendered in this case, the judge may properly take into consideration as evidence the valuation placed upon them by the parties, especially by the party to whom they are rendered; but such valuation is only evidence; it is not the rule of damage. That remains the same, and is the actual value of the services. The ruling requested correctly stated the law applicable to one possible, indeed probable, view of the evidence. It does not appear that it was refused upon the ground that it was immaterial upon the facts found by the court. The refusal therefore to give it was error. See Clarke v. Second National Bank, 177 Mass. 257, 267.

The conclusion to which we have come upon this point renders it unnecessary to consider the other grounds of defence.

Exceptions sustained.

E. B. Gibbs & G. Cunningham, for the defendant.

F. E. Williams, for the plaintiffs.