Donovan v. Walsh

Braley, J. A verdict for the defendant having been ordered on the opening statement of the counsel for the plaintiff, the inquiry is, what are the facts which the jury would have been warranted in finding on the assumption that all the material statements or offers of proof were true. Hey v. Prime, 197 Mass. 474. Ward v. Blouin, 210 Mass. 140. It appears that David Walsh, the defendant’s intestate and a bachelor, owned a parcel of land in Cambridge with a house occupied for many years as a home for himself and his unmarried — 360 — brother Walter Walsh. The plaintiff, with whose family the intestate had been intimately acquainted, was employed By him as a bookkeeper until her marriage. In March, 1902, she was living with her husband and child when the intestate “told her in substance that he was dissatisfied with the housekeepers whom he had employed; that his present housekeeper was leaving him and that he wanted the plaintiff to come to Cambridge and make a home for him and his brother Walter; that if she would come and make a home for them and take care of them that the house at 207 Prospect Street would be hers for a home when Walter and he were through with it; that he also said he would allow the plaintiff $7 per week for the board of himself and Walter in addition to his promise to give her the house; that the plaintiff, after getting her husband to consent to this arrangement, agreed to go to Cambridge ... to make a home for and to take care of them.” The plaintiff accordingly removed with her husband and child “ and made a home for the two brothers during their lives, in all for a period of about fifteen years; got their meals . . . and cared for and nursed them when they were sick,” and the intestate’s last sickness “extended over a,period of more than three years.” The plaintiff or her husband ordered and paid for all interior repairs from 1902 to 1918, the date of the death of the intestate, who survived Walter. The plaintiff on two occasions told the intestate she intended to leave but he persuaded her to stay, saying “that the house and land would be hers.” ■ The intestate “paid the plaintiff $7 per week for board” until Walter’s death, but from that time until his own death “he paid $4 per week for his board by agreement.” But he never stated in what manner he would transfer the title “whether by deed or by will,” and died without having made any conveyance or devise, and without any demand therefor having been made. The jury would have been warranted in finding that, in consideration of the intestate’s promise, the plaintiff agreed to act as his housekeeper, and to care for him and his brother in sickness and in health so long as either should live, and that the parties intended the contract should be bilateral and entire. The action was seasonably begun, and, the burden of proving payment averred in the answer being on the defendant and ho evidence having been introduced, the only remaining defence duly pleaded as matter of law is the — 361 — statute of frauds, the ground on which we assume the trial judge ordered a verdict for the defendant. The intestate promised the plaintiff that if she accepted his offer "the house at 207 Prospect Street would be hers for a home when Walter and he were through with it.” While there is no reference to any legal form or mode by which he would make the transfer, the jury could find that it was contemplated and mutually understood that the intestate before his death would in some effectual manner perform his part of the contract. It is settled that without impairment of his or his brother’s right of support he could have conveyed or devised the property to the plaintiff conditioned upon her performance which would terminate only upon the death of himself and of his brother. Pettee v. Case, 2 Allen, 546. Jenkins v. Stetson, 9 Allen, 128. Hubbard v. Hubbard, 12 Allen, 586. We discover nothing in R. L. c. 74, § 6, that no agreement to make a will of real or personal property, or to give a legacy or make a devise shall be valid unless in writing signed by the person whose executor or administrator is sought to be charged, which is in conflict with this construction of the contract. The plaintiff, as the jury further could find, fully performed all she agreed to do, and if this appeared, the failure of the intestate, who survived his brother, to vest title in his lifetime or to provide for its vesting at his death, leaving the property to descend to his heirs at law, constitutes a breach. Jenkins v. Stetson, 9 Allen, 128. Daley v. People’s Building, Loan & Saving Association, 178 Mass. 13, 18. Morrissey v. Morrissey, 180 Mass. 480. See Edwards v. Slate, 184 Mass. 317. Even if in the beginning the plaintiff must be presumed to have known that, while not void, yet, the agreement being oral, if the statute was relied on, it could not be enforced, had no reason to anticipate' that, having acted in good faith, as the jury also could say, the administratrix, who was not bound to do so, would plead the statute. R. L. c. 74, § 1. Cook v. Doggett, 2 Allen, 439. Ames v. Jackson, 115 Mass. 508, 512. But,.although the breach of an unenforceable contract affords no ground of action, Kidder v. Hunt, 1 Pick. 328, an administratrix can have no greater rights by way of defence than her intestate, the exercise of which must be deemed as being in legal effect the same as if pleaded by him. — 362 — The first, second and fourth counts of the declaration resting on allegations of a breach of the contract, are insufficient to support the action. The third count on an account annexed “for value of real estate promised to be conveyed by or left to the plaintiff by the defendant’s intestate,” is also expressly rested on the contract. See Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306. If it were found that the value of the real estate and the value of the plaintiff’s services were treated by the parties in making the contract as commensurate, yet recovery can be had solely on the ground that, the contract having been repudiated by the defendant, the plaintiff is entitled only to payment for services actually rendered. Dix v. Marcy, 116 Mass. 416, 417, and cases cited. Peabody v. Fellows, 177 Mass. 290, 293. Kelley v. Thompson, 181 Mass. 122. DeMontague v. Bacharach, 187 Mass. 128, 133, 134, 135. Cromwell v. Norton, 193 Mass. 291. The plaintiff is given leave to amend within thirty days after rescript by adding a proper count to the declaration in accordance with the opinion, or by changing from law into equity for specific performance, joining with the administratrix the heirs at law as parties defendant, upon such terms as the trial court may order; and thereupon the verdict is to be set aside and the case is to stand for trial. G. L. c. 231, §§ 55, 125. Williams v. Carty, 205 Mass. 396. If, however, the plaintiff does not amend, the entry will be judgment for the defendant. So ordered.