McKenna v. Twombly

Braley, J. The defendants’1 intestate suffered from a complication of serious physical infirmities, which gradually increased until for quite a period preceding his death he became partially, and then wholly unable to care for himself. The plaintiffs, who were his brother and sister in law, at whose house he boarded and lodged during his sickness, appear to have been in constant attendance upon him, ministering to his daily and nightly needs, and doing what they could by way of nursing and kindly attention to alleviate his sufferings and so far as possible to provide for his comfort. It is not shown, nor is it even suggested by the defendants, that the weekly price he paid for board and lodging included the charges in controversy, nor is there evidence that from a sense of duty or because of affection the plaintiffs intended to serve gratuitously. But where there is no express contract, the performance of work and labor with the expectation of payment does not raise an implied promise to pay therefor, unless the party benefited, knowing that the work is being performed, does not dissent, but accepts the benefit. Foote v. Cotting, 195 Mass. 55, 61. If, therefore, the decedent knew, or should have understood from the circumstances, that the services were to be paid for, the plaintiffs had proved enough to make out a binding contract. McGarrahan v. New York, New Haven, & Hartford Railroad, 171 Mass. 211, 220. Spencer v. Spencer, 181 Mass. 471. Dickey v. Putnam Free School, 197 Mass. 468, 473. It would seem to be beyond dispute, if it were not for the defendants’ contention that there was ample evidence to support a promise to pay, as the jury would be warranted in finding that' the decedent, realizing his helpless condition, not only recog [65] nized the necessity of having some one to care for him, but did not wish to go to a hospital and preferred to remain at the home of the plaintiffs. It was with this understanding, as the jury also could find, that he accepted what was done for him, and, in recognition of' their expectation of payment, assured the plaintiffs that ultimately they would be recompensed. The sufficiency of the evidence to support the declaration was not destroyed, nor were the plaintiffs precluded from recovery, because the decedent’s will in which he gave all of his property to them was set aside as having been procured by their undue influence. If the testamentary provision was intended by the testator to be in payment, the will was never established, and the probate issues were essentially different and wholly independent of the questions involved in the present action which is at common law. To- what extent the unlawful conduct of the plaintiffs may have tended to cast doubt upon the validity of their claims or to discredit the testimony of Mrs. McKenna was for the jury. James v. Cummings, 132 Mass. 78. The judge properly declined to order verdicts for the defendants, and the exceptions to the refusal to grant the motions for new trials, not having been argued, must be treated as waived. jExceptions overruled.