Grossman v. Thunder

Opinion by Mr. Justice Elkin, We have carefully examined and considered the testimony in this case, the charge of the learned court below, the opinion refusing a new trial, and the very excellent argument of counsel for appellant as well as appellee, but do not discover any reversible error in instructing the jury to find a verdict in favor of the defendant. This belongs to a class of cases in which the courts have frequently said every intendment should be most strongly taken against the validity of the claim. The learned trial judge, in discussing the question whether a contract had been entered into between the parties, said: “There is no evidence of any liability here that could not be released upon the payment of what the plaintiff claimed was actually due. There is no proof of any contract. Plaintiff was paid $2.00 a week, and after the services became onerous was paid $3.00 a week. The burden was on her to show that this was not a payment for everything. she did. Testatrix might have promised, because of her gratitude to the plaintiff, to give her extra compensation in the shape of á legacy, but there was no obligation on the testatrix to give this legacy, the plaintiff taking her chances, if the amount paid per week was in full of her services, and in the absence of proof to the contrary we must assume it was. There was no evidence that the amount paid per week was not in full payment of her services, and we are satisfied that a receipt upon payment of the amount claimed was sufficient consideration for the release of any such doubtful claim as this, which rested solely in expressions of [278] gratitude by the testatrix.” All of which is justified by the evidence. ■ To sustain this claim, the burden was on the appellant to show by proof of the most indubitable character, not only that the receipt was not intended to cover all compensation, but that there was a contract entered into to pay for extra services not included in her ordinary employment for which she admit" tedly received the amount of wages agreed to be paid her. This receipt, entirely independent of the question whether or not it was an absolute bar to a recovery, is strongly persuasive that the alleged contract relied upon by appellant was not entered into by the parties. The appellant, a domestic and nurse in the home of the testatrix, having received fixed wages for her services as such, cannot recover in this action for alleged extra services in the absence of an express contract to that effect or an agreement to provide for such compensation by a legacy. The evidence is not sufficient to support either contention. Loose declarations made to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out, about which there is some vague and unconvincing testimony, are not sufficient to establish an express contract, either to pay for the extra services at the death of the testatrix, or to provide for such compensation by a legacy.. There is no evidence that the appellant agreed to remain with the testatrix and accept the terms of what she now alleges to be a contract. All of these declarations, as well as of the acts of the parties, indicate that the appellant was willing to accept the fixed wages she was receiving from week to week and take her chances of becoming a beneficiary in the will of the testatrix. We are not convinced that anything more was intended by the parties, nor that any contract was entered into upon which this action can be sustained. This being our view of the case, it is unnecessary to discuss the question of the receipt being a bar to this claim. Judgment affirmed.