TIMOTHY MURPHY vs. JEFFREY J. O'CONNELL. SAME vs. JEFFREY J. O'CONNELL, administrator.

LORING, J. These two actions were tried together. Both are brought to recover the reasonable value of services rendered by the plaintiff as janitor of a building owned by Hannah Connors during her lifetime. The defendant was administrator of her estate. The second action was brought against the defendant as administrator and covered a period of six years, seven months and a half before the intestate's death, while the first action was brought against the defendant personally and covered a period of two years and half a month after the intestate's death.

The plaintiff had a verdict in each action. Three rulings were asked for by the defendant at the trial. [Note p105-1] The first [Note p105-2] was given, and the second [Note p105-3] and third were refused. No one of the three was pertinent to the first action, that is, the action against the defendant

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personally. Of the two rulings refused one only (the second) is now insisted upon. We treat the other as waived.

It is apparent from the bill of exceptions, which does not purport to set forth all the evidence, that the ground on which the plaintiff sought to recover in the action against the administrator was that he had been induced to perform the services performed by him by a promise of the intestate that he should be paid for them in part by a legacy in her will. It appeared that she died intestate. We infer that the defendant as administrator of her estate had set up in defense of the plaintiff's claim against the estate that the intestate's oral agreement to pay for the services by will was not binding by reason of R. L. c. 74, § 6; and thereupon this action had been brought to recover the value of the services which the intestate thus had secured without paying for them, under the doctrine explained in Kelley v. Thompson, 181 Mass. 122, and De Montague v. Bacharach, 181 Mass. 256; S. C. 187 Mass. 128.

The plaintiff testified that the intestate promised to pay him for his services in part by giving him a tenement for a part of the time at half the rent of it and for the rest of the time free of rent; and in part by leaving him a legacy in her will. The administrator introduced evidence that the trade between the intestate and the plaintiff was that he should perform the services performed by him in exchange for half the rent otherwise due for part of the period and for his whole rent for the rest of the period.

In the evidence put in by the plaintiff at the trial there was testimony to the effect that the intestate had said that the plaintiff "will not lose anything by it," meaning by "it" the work he was then performing for her. The defendant's contention is that by reason of this testimony and the fact that on the plaintiff's story no price for the plaintiff's services was agreed upon at any time, the jury could have found that the actual agreement was that the plaintiff was to be paid by the arrangement as to rent, and that what the intestate said as to a legacy was that she would leave him a legacy by way of a gratuity and not as part of the contract under which the plaintiff was to act as janitor for the building. And, if that was the fact, R. L. c. 74, § 6, was a bar to an action on the promise and the plaintiff could not recover on it or under the doctrine of Kelley v. Thompson, ubi supra. That

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is to say, if the jury did so find, the verdict should be for the defendant.

We are of opinion that the evidence in the case did not call for an instruction on the legal result of such a finding. Under these circumstances it is not necessary to consider whether the second ruling asked for ought to have been understood by the judge to be a request for a ruling to the effect now contended for by the defendant. The result is that the exceptions must be overruled in both actions; and it is

So ordered.

The case was submitted on briefs.

C. A. McDonough, for the defendant.

D. T. Dickinson & A. S. Apsey, for the plaintiff.