Opinion
No. 4381.
Argued February 1, 1955.
Decided February 25, 1955.
In an action of assumpsit by a daughter against her mother to recover for services rendered in the management of the household to enable her mother to be employed elsewhere, evidence of the mother's promise to reimburse the daughter for her services and to pay her was sufficient to justify a finding that the services were rendered in the expectation by both parties that wages were to be paid.
In such case, where an express promise to pay for such services was established but in no agreed amount the plaintiff was entitled to receive just and reasonable compensation.
ASSUMPSIT, to recover the sum of $9,280 for services rendered to the defendant from January 19, 1942, to December 4, 1950, allegedly of the value of twenty dollars a week. Trial by jury, with a verdict for the plaintiff for $4,850. The defendant excepted to the denial of her motions for a nonsuit, a directed verdict, and to set aside the verdict, and to the denial of certain requests for instructions. Reserved and transferred by Grant, J.
In 1942, the plaintiff who is the defendant's daughter, was twenty-four and living in her parents' home. She then undertook to manage the household, consisting of her father, sister, niece, and a boarder, so that her mother might take employment away from home to aid in financing the sister's education at a college from which she was graduated in 1946. The plaintiff testified that this was arranged at a conference at which she was assured by her mother that if she would manage the household, the mother "would see that I got reimbursed for my services," and "would see that I was paid." On cross-examination, she reiterated that the defendant "asked me if I would stay and do the work, and . . . agreed to pay me at some later date after she got Susan through college and straightened out." She further testified that the promise was renewed while the sister was in college, and that when she graduated in 1946, the defendant again promised that if the plaintiff would continue, "she would see that I got paid for it." During most of the period in question the defendant lived away from the home. The plaintiff admittedly was a good cook and housekeeper.
The defendant denied that there was any agreement that her daughter should be paid. However she testified that if the plaintiff had come to her "and said she wanted to get married . . . [or] `you come home and let me go,' we could have had a settlement right then and there . . . ." Other facts are stated in the opinion.
Guertin Widener (Mr. Guertin orally), for the plaintiff.
Charles J. Lincoln and Kenneth A. Brighton (Mr. Lincoln orally), for the defendant.
It is established that "as between members of the same family the mere rendition and acceptance of valuable services will not justify the inference of a promise to pay." Decatur v. Cooper, 85 N.H. 250, 253; Blake v. Lord, 90 N.H. 42, 44; anno. 7 A.L.R. (2d) 8. An adult child who lives with his parents as a member of the family, enjoying the "mutuality of the benefits rendered and received," is not entitled to recover for labor performed "in the absence of evidence showing a contract in fact." Page v. Page, 73 N.H. 305, 306, 308. See Munger v. Munger, 33 N.H. 581.
The defendant, relying upon this principle, asserts that there was no evidence of a contract sufficient to overcome the presumption that the plaintiff's services were gratuitous, but only of "loose talk [which] is hardly regarded as evidence of . . . an agreement" to pay wages. Hall v. Hall, 44 N.H. 293, 297. She asserts that a statement that "you will be taken care of" is not "an express promise to pay in fact," and requested the Trial Court to so instruct the jury.
The record before us does not disclose evidence of a promise in the quoted language, and for this reason, if for no other, the requested instruction was properly denied. If the evidence that the defendant promised to "reimburse" the plaintiff did not conclusively establish the defendant's expectation to pay for services rendered, it might reasonably be found to so indicate. Blake v. Lord, supra, 44. The further evidence that she agreed to "pay" the plaintiff at some time after Susan's graduation was evidence upon which the jury could find that the plaintiff's services were in fact rendered in the expectation by both parties that wages were to be paid, and not merely that some remuneration would be made as a token of the defendant's bounty. As already indicated portions of the defendant's testimony tended to confirm the plaintiff's claim. In Hall v. Hall, supra, evidence of comparable circumstances was held sufficient to present an issue for the jury. Similarly, there was sufficient evidence in the instant case of a promise to pay the plaintiff.
The defendant further argues that a "quantum meruit claim" is not sufficient to overcome the presumption that the plaintiff's services were gratuitous, and that a contract for the payment "of sum certain" must be shown. It is true that evidence of a "contract in fact" (Page v. Page, supra) is required. Such evidence was offered. While no inference of a promise to pay could arise because of the relationship of the parties, if an express promise were found the inference that the amount was to be a reasonable amount was permissible in the absence of any different understanding. The defendant took no exception to instructions to the jury that it could find that there was a promise to pay money "without there being an agreement to pay a definite sum of money"; and that in such a case it should determine the reasonable value of the plaintiff's services. In Seavey v. Seavey, 37 N.H. 125, 128, 133, an action upon the common counts was submitted to the jury under instructions not essentially different. In Hall v. Hall, supra, 296, it was said that the contract must be either for wages at a certain rate or for "a just and reasonable compensation." See also, Decatur v. Cooper, 85 N.H. 250, supra, 417 Briefs Cases 949. The essence of the rule is that there must be evidence of an expectation of payment on the part of both parties. Bundy v. Hyde, 50 N.H. 116, 123, 124. If this requirement is satisfied, the fact that the amount of compensation is not fixed by the agreement is not fatal. The motions for a nonsuit and a directed verdict were properly denied.
Since the plaintiff did not rely upon an implied promise to pay but claimed an express promise, there. was no occasion to instruct the jury upon "a mere implied promise to pay" in accordance with the defendant's fifteenth request. Lynch v. Sprague, 95 N.H. 485, 491. The jury was told that the "usual implication" that services are to be paid for did not apply. Other requests to the denial of which the defendant excepted were sufficiently covered by the instructions given. The argument in support of the motion to set aside the verdict has been considered in connection with the motions for a nonsuit and directed verdict. The exceptions are accordingly overruled.
Judgment on the verdict.
All concurred.