Appleby v. Noble , 101 Conn. 54 ( 1924 )

The complaint alleges, and the finding discloses evidence offered by the plaintiff tending to prove a parole contract between the plaintiff and the testatrix, Augusta M. Clark, whereby the plaintiff agreed to render services as caretaker and manager of her homestead until her death and she agreed to compensate him therefore at the rate of $100 per month, of which $40 was to be paid monthly and the balance of $60 per month to be paid by a provision to that effect in her will. In pursuance of this agreement, the plaintiff rendered services from October 1st, 1918, until June 1st, 1922, when Augusta M. Clark died. She paid him $40 for each month's service and although she died testate, made no provision in her will for the payment to him of the $2,640 due him, in accord with the contract, although she left a bequest to him in her will amounting to about $500.

The complaint alleges a valid parole contract for work and labor, payment to become due at her death. It is not an agreement to convey real estate by will, and hence not contrary to the fourth section of the statute of frauds. Nor is it an agreement "not to be performed within one year from the making." "A contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year" ; hence, "a contract which, inherently or by its terms, depends for its continuance upon a life, is not within the statute." Anson on Contract (Corbin Edition) p. 101, notes.

This action is brought to recover the contract price for the services rendered by the plaintiff, which the defendants' testatrix did not pay for "by a provision to that effect in her will." The defense was that no such contract had been made. The plaintiff sought only to prove and recover under the express contract; he did not seek to recover the reasonable value of the services because of a variance in the proof, under Practice Book, p. 280, § 167. There was, therefore, in the facts claimed to have been proved, no basis for the charge to the jury that the plaintiff, if he proved the contract, was entitled to recover the reasonable value of his services. See Paige on Contracts (2d Ed.) Vol. 3, § 1441; Hollister v. Kinyon's Estate, 195 Mich. 261,161 N.W. 962.

Upon the trial, the court erroneously dealt with the contract alleged by the plaintiff as if it were a contract falling within the statute of frauds and hence not enforceable, and charged the jury that if the contract claimed by the plaintiff had been made, the plaintiff could not recover in accord with its terms, if proven, but could only recover the reasonable value of the services rendered in pursuance of it. This was in accord with our rulings where parole contracts are made which are unenforceable because within the provisions of the statute of frauds relating to sales of land.Schempp v. Beardsley, 83 Conn. 34, 75 A. 141; Hull v. Thoms, 82 Conn. 647, 74 A. 925; Grant v. Grant,63 Conn. 530, 29 A. 15.

The court erred in not charging the jury that, if they found that the plaintiff had proved that the contract alleged was made and performed by him, he was entitled to recover at the rate of $60 per month for the forty-four months of his service after June 1st, 1922.

Nevertheless, the omission to so charge the jury was harmless error, for the charge as given required the jury to render a verdict for the plaintiff for the reasonable value of his services for the forty-four months in question, in excess of the $40 a month paid him, if they found that the contract was entered into. Since the jury found the issues for the defendants, they must have found that the contract, as claimed by the plaintiff, was not in fact made. Under the pleadings and charge, there was no possibility that the jury may have found that the contract was made and that the legacy to the plaintiff equalled or exceeded the reasonable value of the services of the plaintiff for the forty-four months in question in excess of the $40 a month actually paid him. No such issue was presented to the jury by the pleadings or the charge. The defendants did not plead a payment of the plaintiff by the provisions of the will, and the court in its charge did not include any suggestion that would permit the jury to find that, if the reasonable value of the services rendered by the plaintiff less the sums paid him was equal to or less than the value of the bequest to him, their verdict should be for the defendants.

Under the charge, if the jury had found that the contract alleged was in fact made, they were required to render a verdict for the plaintiff for some sum. A verdict for the defendants necessarily therefore disclosed that the jury found that the contract alleged was not entered into.

In view of that finding by the jury, it was harmless error that the court did not properly charge that the plaintiff, if he proved the contract, was entitled to recover the agreed price for his services.

There is no error.

In this opinion the other judges concurred.