Hatch v. Purcell

Gilchrist, O. J. The case finds that the appellee did not go to Mrs. Gardner’s house under any understanding or agreement that she was to be paid for her services. She went there as a relative, and not as a hired servant to receive compensation, and made no claim against Mr. Gardner or his estate for compensation. She had the whole charge of the family for some years. Mrs. Gardner told her two or three years before her death, and at other times, that she ought to be paid for her services, that she ought not to do so much work without compensation, and requested her to bring in a bill against her for her services, and this was all the agreement or conversation they had on the subject. It is upon this state of facts that the claim now before us is to be considered. It has been settled since the time of Hobart, that “ a mere voluntary courtesy will not have consideration to uphold an assumpsit.” Lampleigh v. Brathwait, Hob. 105. Bartholemew v. Jackson, 20 Johns. 28. For it is not reasonable, it has been said, that one man should do another a kindness, and then charge him with a recompense. Osborne v. Rogers, 1 Saund. 264. (n) 1. A consideration executed and past, is not sufficient to maintain an assumpsit, unless it were moved by a precedent request, and so laid. But where a party derives benefit from the consideration, it is sufficient, because equivalent to a previous request. Ibid. A request may be implied from the beneficial nature of the consideration, and the circumstances of the transaction. Hicks v. Burhans, 10 Johns. 243. And it is the province of the jury to determine from the evidence whether a promise can be inferred or not. Oatfield v. Waring, 14 Johns. 188. Where one pays 'a sum of money for another, without any request, and the other afterwards agrees to the payment, this is equivalent to a previous request to do so. The benefit to the party, connected with his express promise to pay, [550] must be deemed equivalent to a previous request. Doty v. Wilson, 14 Johns. 378. Livingston v. Rogers, 1 Caines, 584, 585. In the present case, beneficial services were performed by the appellee for Mrs. Gardner, and she recognized them as such, and requested the appellee to bring in a bill for them. There is 'then evidence from which both a previous request and a promise may be implied, and we think the decision of the judge of probate was correct. The point that the claim for services being the only matter stated as a reason for the appeal, is the only one which-the appellant has a right to contest, has been settled for the appellee in the case of Mathes v. Bennett, Adm’x, supra, page 188. Decree affirmed.