Ennis v. Clancy , 106 Conn. 511 ( 1927 )

The motion to set aside the verdict was properly denied. The plaintiff offered evidence tending to prove the allegations of the complaint, which were that the plaintiff rendered services to the defendant's intestate at her request and upon her promise to pay for the same, and in consideration of such services agreed that she would compensate the plaintiff by provision in her will, and that these services were reasonably worth $10,000.

The complaint may be construed to set up two causes of action. One based upon facts indicating that the services rendered were such as to give rise to a reasonable and proper expectation that compensation would be made therefor. Cotter v. Cotter, 82 Conn. 331,73 A. 903; 13 Corpus Juris, 722. The other arising out of the unjust infliction of loss upon the plaintiff through the breach by defendant's intestate of her agreement to compensate him for the services rendered by provision in her will. Wainwright v.Talcott, 60 Conn. 43, 22 A. 484. The court has found that "The plaintiff presented to the court no requests to charge, and at no time [during the progress of the trial] made claim that the services for which he sought to recover were rendered under circumstances such that, in default of any promise to remember him in her will, the law would imply a promise to pay for them." The memorandum of decision on motion to set aside the verdict, to which we may refer for an interpretation of this finding, states: "The main ground on which the plaintiff seeks to have this verdict set aside is because he now claims that the complaint is susceptible of the construction that what he seeks to recover is a quantum meruit for the breach of an implied contract and this claim must be examined, although to the best of the court's recollection no such claim was made in the argument of the case and there was no evidence which would justify putting any such issue to the jury."

The issue upon which the case was tried and argued to the jury was the only issue upon which the court was required to instruct the jury. The case cannot now be disposed of, as the plaintiff urges in his appeal, upon an issue other than that which was presented to the jury by counsel and upon which the jury were fairly instructed. Claims of law upon appeal are "limited to those made upon the trial of the case in the court below." Fidelity Casualty Co. v. Palmer,91 Conn. 410, 419, 99 A. 1052; Boardman Realty Co. v.Carlin, 82 Conn. 413, 415, 74 A. 682. A court will, in some cases, consider an issue not so raised in the trial by counsel, but the case will be exceptional where error may be predicated upon its failure so to do. This is not an example of such an exceptional case.

There is no error.

In this opinion the other judges concurred.