Evers v. Gilfoil

Crosby, J. On April 1, 1916, the plaintiff sold his furniture and house furnishings business to the defendant’s intestate, John F. Gilfoil, who had been in the plaintiff’s employ for many years. The purchase price was $24,000, secured by a mortgage upon the property so sold, and was payable at the rate of $400 a month. At the time of the sale there was in the employ of the plaintiff one Dudley, who had charge of the furniture department; his employment was under a written contract, entered into with the plaintiff several years previously, by the terms of which Dudley was to receive $40 a week for a certain number of years. On April 1, 1916, this contract had sixty-four weeks to run. When the sale of the business to Gilfoil was consummated, nothing was said by the parties about Dudley’s contract; shortly afterwards, however, it was called to their attentionTiy Dudley. The plaintiff testified, in substance, that he then had a conference with Gilfoil and it was arranged that Dudley should be retained in the store during the remainder of the term of the contract with the plaintiff; that in view of the monthly payments which Gilfoil was required to make on the purchase price, the plaintiff agreed that Gilfoil could deduct therefrom $40 a [223] week, and later on he and Gilfoil would determine what Dudley’s services were worth. He further testified that he had several talks with the defendant’s intestate respecting Dudley’s salary; that from time to time he told Gilfoil he was in no hurry for the money that had been deducted to pay the salary, that he did not need it; that he said, “You can have the use of the money and we will settle it at any time;” that about a month or six weeks before his death the decedent told him he wanted to get out of the business; that if he could get a rest he thought he might get well; that he wanted to turn the business over to one O’Melia, “ and wanted me to finance it and what money he owed me, both of Mr. Dudley’s and myself, could be transferred to the other account.” At the date of the death of the intestate, he had not paid the full amount of the purchase price; but it was admitted at the trial that all the payments due the plaintiff had been made, and that the only question at issue was that of the repayment of the amounts deducted by Gilfoil, with the approval and by direction of the plaintiff, from the monthly payments of $400 due on the note. It appears that Dudley remained at work and was paid $40 a week for a period of sixty-four weeks; in July, 1917, the contract between him and the plaintiff having expired, he went away; later in the fall of that year he entered the employ of Gilfoil, performing substantially the same services as previously rendered, at a weekly salary of $30 a week, and .this employment continued until Gilfoil’s death. It is the contention of the defendant that ag the parties never agreed as to how much Dudley’s services were worth to Gilfoil, there was no binding contract. Where services are performed for another or other benefits are received by him with his knowledge, and there is no evidence that such benefits were conferred gratuitously, the law implies a promise to pay for their reasonable value. If the evidence in the case at bar is insufficient to prove an express contract, it is ample to warrant a finding that Dudley’s services were accepted by Gilfoil with the intention that they were eventually to be paid for by him. The circumstance that the [224] defendant’s intestate died before any agreement had been arrived at as to the value of the services will not prevent recovery by the plaintiff on a quantum meruit. Day v. Caton, 119 Mass. 513. Dickey v. Trustees of Putnam Free School, 197 Mass. 468, 473. The agreement is not void for indefiniteness or uncertainty because the value of Dudley’s services was not agreed upon but was left for future determination. Atwood v. Cobb, 16 Pick. 227, 231. Newmarket Manuf. Co. v. Coon, 150 Mass. 566, 568. Carnig v. Carr, 167 Mass. 544. Silver v. Graves, 210 Mass. 26. If the presiding judge believed the testimony of the plaintiff, he was warranted in finding that the decedent understood he was expected to reimburse the plaintiff for the deductions made weekly from the purchase price for the purpose of paying Dudley’s salary. The only matter that was not agreed upon was the value of the services to Gilfoil; but it could have been found that that was to be settled at a future time. As Gilfoil died before the amount was determined, the law implies a promise to pay what was fair and just between the parties under all the circumstances. The contract has been fully executed on' the side of the plaintiff by his consenting that Dudley’s salary should be deducted from the payments due on the purchase price. Upon all the evidence it could have been found that the defendant was bound to carry out the obligation assumed by Gilfoil; and she is required to reimburse the plaintiff in a sum equal to the value of Dudley’s services to Gilfoil. As was said in Silver v. Graves, supra, at page 30, “ When a contract has been executed on one side, the law will not permit the injustice of the other party retaining the benefit without paying unless compelled by some inexorable rule.” For the reasons stated, none of the rulings requested by the defendant could have been made. It remains to consider only the exceptions to the admission and exclusion of evidence. The judge admitted, subject to the defendant’s exception, evidence that Gilfoil paid Dudley $30 a week after the latter’s contract with the plaintiff had expired. This was admissible upon the question of the value of Dudley’s services. The exception to the exclusion [225] of the question calling for a conversation between the deceased and his brother relating to payments on the mortgage given to the plaintiff cannot be sustained. The amount due on the mortgage was not in dispute and it is not apparent that the evidence was relevant to any issue between the parties. We have considered all the exceptions that have been argued. The others are treated as waived. As we perceive no error of law in the conduct of the trial, it results that the entry must be Exceptions overruled.