Bright v. Ganas

Sloan, J., delivered the opinion of the Court. The plaintiff, Paul Ganas, sued the defendant, Robert S. Bright, executor of James G. Darden, deceased, on an alleged testamentary contract for the sum of $20,000. The judgment being for the plaintiff for $8,990, the defendant appeals. The first count of the declaration set up an oral agreement between the plaintiff and James G. Darden, entered into in the month of May, 1929, whereby the plaintiff was to live with Darden, at the latter’s newly purchased home at Cambridge, Maryland, as a servant, and, in consideration of the plaintiff’s, so continuing with Darden during his lifetime, the plaintiff was to receive on Darden’s death “out of his estate” the sum of $20,000; but that Darden died without having made provision for the plaintiff in his will (dated September 14th, 1931), which was admitted to probate and recorded in Dorchester County; that Darden accepted the services of the plaintiff,. which were faithfully rendered, and so continued to November 18th, 1933, when Darden died.

The second count was “for work done and materials furnished” at decedent’s request. The defendant demurred to the first count of the declaration, and demanded a bill of particulars as to the second count. A bill of particulars having been filed, the defendant then demurred to the second count, and to the whole declaration, a suggestion for removal was made by the defendant, and the case removed to Somerset County, where the demurrers were all overruled, and the case tried. At the conclusion of the evidence, the trial judge granted a prayer for an instructed verdict for the defendant on the first count, so that the question of an agreement to devise or bequeath to the plaintiff has been treated by the defendant as no longer in issue on the appeal, and the plaintiff has not appealed, so that the right of recovery on the first count has been adjudicated against the plaintiff, and the only ⁴⁹⁷ question then on the pleadings is as to the legal sufficiency and effect of the second or common count. [The defendant’s position seems to be that the common count in assumpsit is not available or is out of place in a suit on an express contract, and that it is only in order when recovery is sought on an implied contract, or one in which the only measure of damages would be on a quantum meruit.

It has never been considered faulty pleading to include the common counts, when there is a count on an express contracO The practice in this state is to do both, or, as, said in 1 Poe, Pl. & Pr. sec. 583“In assumpsit a careful pleader, when declaring on a special contract, seldom omits the common counts.” In Bethlehem Steel Co. v. Dornberg, 135 Md. 121 , 108 A. 474, 475 , a suit by a broker for commissions on a sale of real estate, it is said: “The first three counts in the declaration were the common counts in assumpsit, on an implied contract, while the fourth count sets out a specific contract ; and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon both an implied and express contract.” Conservation Co. v. Stimpson, 136 Md. 314 , 110 A. 495 ; Hamilton v. Thirston, 93 Md. 213 , 48 A. 709 ; Gill v. Staylor, 93 Md. 453 , 49 A. 650 ; Id., 97 Md. 665 , 55 A. 398 . It is well settled in this state, even if there is a special contract and the plaintiff has, performed, he may declare on the common counts. Walsh v. Jenvey, 85 Md. 240 , 36 A. 817 , 38 A. 938 ; Southern Bldg. Assn. v. Price, 88 Md. 155 , 41 A. 53 ; Fairfax Forrest Mining & Mfg.

Co. v. Chambers, 75 Md. 604 , 23 A. 1024 ; Ellicott v. Turner & Peterson, 4 Md. 476 . The proper measure of damages in such case is the compensation fixed by the contract. The defendant’s contention is that the two counts are inconsistent, and they may be, but that cannot be determined until the evidence is, in, and then the law must be applied by the instructions of the court to the facts in evidence, (what was done in this case is the course usually pursued in the prosecution of suits for recovery of promised bequests and legacies in payment of alleged ⁴⁹⁸ services, the claimant fortifying himself, in the event of failure to establish a specific contract, by resorting to the quantum meruit under the common counts) Baker v. Lauterbach, 68 Md. 64 , 11 A. 703 ; Ellicott v. Turner & Peterson, 4 Md. 476 . In Hamilton v. Thirston, 93 Md. 213 , 48 A. 709 , the plaintiff declared only on a specific oral agreement with an uncle for a devise in consideration of services.

The statute of frauds was not pleaded, but defense was on that ground, was. sustained in this court, and the judgment reversed with leave to the plaintiff to apply for a remand to so amend his pleadings as to .declare in assumpsit for the value of his services. 1 Woerner, Law of Administration (3rd Ed.) p. 80, sec. 37; Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 A. 398 ; Clark v. Cordry, 69 Mo. App. 6 ; Schwab v. Pierro, 43 Minn. 520 , 46 N. W. 71 ; In re Williams’ Estate, 106 Mich. 490 , 64 N. W. 490 ; Felton v. Smith, 50 Wash. 459 , 97 p. 460. If the plaintiff established by evidence facts sufficient to show a contract to bequeath him a specific sum in consideration of his serving the decedent to the end of his days, unless sooner terminated by the act of either, then the plamti'ff would be entitled to recover under the first count. ¿Jf the evidence shows no contract, but an understanding that the services were being rendered on the implied agreement that they be paid for at their reasonable value, tfhe second count, the sixth in Roycroft v. Nellis, 171 Md. 136 , 188 A. 20 , is sufficient in form for this purpose. The same count would also be proper in form if it should be found that there was an express contract, the work done, and nothing left but the payment of the money.

Walsh v. Jenvey, supra. For the reasons which we nave stated, the demurrers were properly overruled. At the conclusion of the evidence, the plaintiff offered three prayers, the first and second of which were refused and the third granted, the special exception to which was overruled. The defendant offered; ten prayers, of which the first and seventh were .granted, and all others refused.

The plaintiff specially excepted to the defend ⁴⁹⁹ ant’s eighth prayer, and the exception sustained, and the defendant’s twenty-sixth and twenty-seventh exceptions are to the rulings on the prayers adverse to him. The defendant’s first prayer, which was granted, was for a directed verdict on the first count of tfie declaration on the express contract. There were twenty-four exceptions to rulings on the evidence, of which six have been abandoned by the defendant, and thirteen have been treated by both sides as out of the case, by reason of the granting of the defendant’s first prayer, though the plaintiff asserts that the evidence to which the thirteen exceptions applied remained in the case to be considered by the jury in so far as applicable to the second count. The evidence excepted to, pertaining to the first count, was admitted subject to exception.

The defendant moved to strike it out, and he agreed, if the court granted his first prayer, it would not be necessary to pass on the motion to exclude the evidence. The trouble, as we see it, is that, being in the record, it cannot be ignored in the consideration of the other prayers for instructions, to the refusal of which exception was taken. The record shows without contradiction, on the plaintiff’s proof, that he was entitled to a verdict for $20,000 or nothing; on the defendant’s that he was hired at ten dollars a week, and that he could not recover anything more than the balance which might be due him at that rate. The fact that they disagreed as to the amount due would not make either contract the less express.

See Walsh v. Jenvey, supra. Paul Ganas, the plaintiff, a native of Greece, at the age of thirteen, came to this country about twenty-seven years ago, whither he had been preceded by his father, then engaged in the restaurant business at Roanoke, Virginia. He worked at various places, principally as a waiter, finally going to Washington, where he became acquainted with Colonel James G. Darden, a picturesque and mysterious character, who lived luxuriouly and seemed to be supplied with plenty of money, though we are not informed as to the nature or size of his estate. Colonel Darden settled in Cambridge in 1929, where he bought a ⁵⁰⁰ house, and in May of that year engaged Ganas as a servant or man of all work, more or less personal in its nature, and there Ganas continued until Darden’s death in November, 1933, at about the age of sixty-eight.

Accprding to Ganas, he gave up a job as a'waiter in a Washington hotel, which paid hi'm from a hundred and fifty to two hundred dollars a month, to -enter the employ of Darden, on the promise that he would receive out of Darden’s estate, at the latter’s death, twenty thousand dollars. He was not permitted to testify to this under the Evidence Act (Code, art. 35, sec. 3), and every time he disclosed the terms of his agreement' it was, on motion, stricken out, except in two instances when it got in without objection. He had witnesses, however, who could and did testify to the agreement. During his residence at Cambridge, Colonel Darden had in his employ as chauffeur and gardener Leonard Keene.

Keene testified that he drove the colonel to Washington to get Ganas at the Haye Adams house in June, 1929, and of what happened on that occasion he said: “Well I went there and the Colonel was waiting for Paul. He was very much upset about it. He said, ‘Paul, here you are late the first morning. Remember what I told you, promised you twenty thousand dolars.’ Then on our way out, coming home (between Washington and Annapolis) he made the remark—said’, ‘Leonard, Paul is going to have a good home with me and get twenty thousand dollars at my death.’ ” He heard Colonel Darden. make the $20,000 remark many times after that, but “most of the time he said he would be left well fixed.” Colonel Darden made no secret of his arrangement with Ganas, but seemed to take delight in telling his friends in and around Cambridge that he intended to leave Ganas, as a reward for his services, the sum of $20,000. [Five witnesses besides Keene testified that he had told them that Paul was to get $20,000 at the Colonel’s death, and three others testified he had told them that when he died Paul “would be well fixed.” Aside from the evidence of Keene, the other declarations, if communicated to the ⁵⁰¹ plaintiff, could only leave in 'his mind the expectation of a legacy, which would not be sufficient to set up a testamentary contract?^ Bantz v. Bantz, 52 Md. 686, 695 ; Krug v. Mills, 159 Md. 670, 676 , 152 A. 493 .

But the first statements to Keene were made in the presence and hearing of Ganas, and the other declarations made by the Colonel tend to corroborate his testimony, and