Martin v. Wright's Administrators

By the Court, Savage, Ch. J. The facts disclosed by the case presented to us, on the motion to set aside the report, were sufficient to warrant the referees in finding that the services for which compensation is sought by this action were never intended, on either side, to be gratuitous. A reference to some of the cases cited will show the circumstances under which services rendered shall be considered gratuitious. The case of Osborn v. The governors of Guy's Hospital, 2 Strange, 728, is often referred to on this point, though it was only a nisi prizes decision. That was an action for services rendered to Mr. Guy, in his stock affairs. It appeared as if Osborn did not expect to be paid, but to be considered for it in the will of Guy; and the chief justice directed the jury, that if such was the case, they could not find for the plaintiff, though nothing was given him ; that they should consider how it was understood by the parties at the time of doing the business, and that a man who expects to be made amends by a legacy cannot afterwards resort to his action. So, in the case of LeSage v. Coussmaker,1 Esp.N.P. Cases 189, Lord Kenyon said, that the law was well settled, that if the plaintiff had performed the services without any view to reward, but to legacy, that a demand for services could not be sustained ; of that the jury were to judge. In the case of Jacobson v. Executors of Le Grange, 3 Johns. Rep. 199, the plaintiff lived with hisuncle, the testator, athis request, eleven years; and the uncle said the plaintiff should be one of his heirs, and proposed to plaintiff’s mother-in-law to give him £350 in land, as a compensation for his services. The plaintiff had never made any claim upon the testator. The jury found a verdict for the plaintiff, Van Ness, justice, in giving the opinion of the court, intimates that the plaintiff could not recover, if the services were rendered without any view to compensation other than such as the testator chose to make, by his last will and testament; but he also says, that the services having been performed for the benefit of the testator, [464] with his knowledge and approbation, thelawimplies a promise to pay unless it can be shown that payment was never intended. In Patterson v. Patterson, 13 Johns. R. 3.79,80, the same ^earne<^ judge says, that the plaintiff is entitled to a reward for his services, unless they were tobe performed gratuitously. He cites the case I have above referred to, in Strange and Espinasse, and intimates, that if the understanding of both parties was that the services should be paid for by a provision in the will, a right of action would accrue, provided no provision should be made. So, too, in Little v. Dawson, 4 Binn 111, the rule is said to be, that if the services were rendered merely in expectation of a legacy, without any contract, express or implied,but relying solely on the testator’s generosity, no action can be maintained ; but in that case the testator had said that he meant to provide for plaintiff as a child, which was left as a matter of fact for the jury to decide whether the services were gratuitous. These cases surely go far enough in favor of the defendants. It was a question for the referees in this case to decide whetherthe services were intended tobe paid for. They have found that compensation was expected and intended at the time they were rendered, and the evidence fully sustains their finding. The circumstances under which the receipt was given are sufficiently explained. If the receipt which was produced was that which was executed in presence of the witness Cow-en, then it is clear that the plaintiff intended to have the compensation given by the will which had been executed but a short time previous. Had it been absolute in its terms, it must be understood as made in reference to that arrangement: and if it was understood that a new arrangement had become necessary, the plaintiff had no reason to expect that the provision for his children would be altered. It was certainly understood by both parties in this case that compenastion should be made. The measure of compensation intended by the intestate was made known, and was satisfactory; after that the defendants should not be permitted to defend themselves by the absence of any testamentary provision. The rule, I apprehend, was never intended to apply to cases where it was [465] understood by both parties that compensation should bemade; but merely to cases where services were rendered apparently gratuitously, under an expectation of a legacy. Motion to set aside report of referees denied.