Marx v. Marx

³⁷⁵ Pattison, J., delivered the opinion of the Court. John Marx, by his will executed in May, 1901, devised to his daughter, Gertrude Sippel, fifteen acres of land in Baltimore County. To his son George he gave the sum of two thousand dollars “or the release of the mortgage” for said sum, held by him resting as a lien upon the lands of George. To Charles, another son, he gave two thousand dollars in cash and a designated mortgage, held by the testator, for the sum of six hundred dollars.

To each of his daughters, Lizzie Reinecke and Annie Quick, he gave the sum of two thousand dollars, and to his remaining son, John, he gave the residue of his estate, provided he maintained and supported him so long as he lived. Charles was named as his executor. The testator made his home with John until September, 1901, when he left and went to the home of his son George, where he remained until his death in June, 1912. The appellee, Augusta Marx, is the wife of George,-and this suit is brought by her to recover for services she rendered to her father-in-law, in caring for and attending to him, “including nursing, washing and mending,” for the period he was at the home of George, to wit, from September 15th, 1901, to June 16th, 1912, 559 weeks.

The case was tried by a jury in the Court of Common Pleas of Baltimore City, and a verdict rendered in favor of the plaintiff, upon which a judgment was entered. It is from that judgment this appeal is taken. The law in respect to actions brought to recover for services rendered, such as we find in this case, is now well settled in this State. As between persons not members of the same family, the mere fact of rendering services useful to the party to whom they are rendered, furnishes prima facie evidence of their acceptance, and in the absence of some proof to the contrary raises an obligation to pay what they are worth, there being no proof of special value, Spencer v. Trafford, 42 Md. 20 , but this is not the rale where the services are rendered by a member of the family of the person served. ³⁷⁶ In such cases a presumption of law arises that such sevrices are gratuitous; Bixler v. Sellman, 77 Md. 496 .

The case before us falls within the class of cases last mentioned, and it was so treated by the lower Court and the counsel of the plaintiff in the trial of the case below. The law applicable to this class of cases is clearly stated in Bantz, Ex’r. v. Bantz, 52 Md. 686 , where it is said: “In order to justify a claim for services being allowed against a decedent, there must have been a design, at the time of the rendition, to charge and an expectation on the part of the recipient to pay for the services. The services must have been of such character, and rendered under such circumstances, as to fairly imply an understanding of payment, and a promise to pay. There must have been an express or implied understanding between the parties that a charge for the services was to be made, and to be met by payment.” The jury, in determining whether there is an implied contract in such cases, should follow the rule laid down in the ease of Guild v. Guild, 15 Pickering, 129, and approved by this Court in Bantz, Ex’r. v. Bantz, supra, “that if under all the circumstances of the case the services were of such a character as to lead to a reasonable belief, that it was the mderstanding of the parties that pecuniary compensation should be made for them, then they might find an implied promise and quantum meruit.” The facts found in the record in this case conclusively show that the plaintiff rendered services to the defendant’s decedent, and the only question to be determined is whether she is entitled to recover therefor under the law as we have stated it.

The record discloses that the father left the home of his son John because of the treatment of him by John and his children, especially because of the treatment of the children. George, in his testimony, states that his father said to him, on the occasion that he came to his home, that “John had chased him away,” and he asked if he could stay with him. ³⁷⁷ The home in which George and his wife lived was small, and this fact was mentioned by George; but the suggestion was made by the father that he build an addition to the house and that he would give him the money with which to build it. After saying this, George said, “he walked over to my wife, and he patted her on the shoulder and said, ‘I want you to take care of me as long as I lived He said, ‘You will get paid for it at my death.’ He said that John should not have the money because he chased him away.” He also testified that his father would often speak of the care and attention given him by the plaintiff to those who from time to time visited his home, and his father would say on these occasions that “she had to do the work for him and after he was dead that there was money enough there to pay for it, that my brother had money enough left out of his estate to pay for it.” Witness also spoke of a conversation his father had with Mrs. Willhouck in 1911, after the death of his son John in 1909, in which he told her that the plaintiff “had to do all his work, clean his room and wash for him and make his bed, and after he dies he says he had money enough there to pay for it.” Mrs. Willhouck, to whom we have just referred, was a friend of Mrs. Marx and had for many years visited the home of the plaintiff two or three times a week, and at times when John Marx, senior, was sick would assist her in caring for and attending to him. Mrs. Willhouck testified that on a visit to the home of the plaintiff, shortly after Mr. Marx, Senior, had come there, she had a conversation with him in which he said that he had come to George’s to' live, “that he was with John but John did not treat him just as he would have liked, the children especially,” and that he was going to make his home with George and his wife. “But that Mrs. Marx should not be forgotten when he was dead, because he intended, as he had made a will, and he had intended for each and every one to have two thousand dollars, with the exception that George Marx, was to have the ³⁷⁸ release of the mortgage”; and his daughter Mrs. Sippel “was to have the other ground.

But from the interest and all that was left that was placed in John’s name; that Mrs. Marx should be paid out of that for doing what she. did for him.” Mrs. Willhouck also testified that on subsequent visits to George Marx, so late as 1911, John Marx, Senior would refer to the subject of Mrs. Marx’s treatment of him and her compensation therefor, ^that he very seldom spoke of any of his children with the exception of John that he said had his money. He often spoke of him with regard to having the money. He said John had his money and that Mrs. Marx would not be forgotten after he was dead, that he had enough money that was left there for her services for working and doing for him.” While upon the stand Mrs. Willhouck was asked — Do you know whether Mrs. Marx expected to be paid after the old gentleman’s death? To which she replied, “yes, because she often said it.” It is disclosed by the record that at the time of the execution of the will the testator had considerable money in several of the savings banks of the City, and that the bank books showing such deposits were in the possession of his son John, where they remained after the father took up his-abode with George.

Several years after, the testator left the home of John, he on one occasion said to George, as George testifies, “it looks funny I am here and my bank books are down at John’s. That is not going to do^’ and he directed George “to hook the horse to the buggy” and they would go down and get them. They went to John’s and the father said to him “John I want those bank books; that money in those bank books belongs to me” and John gave him the books. After reaching home the father went to the room of George, and said to him, handing him the books, “you keep these, that in case of fire you will know where they are.” George took them and placed them in a drawer, which he locked, and there they remained for sometime when, on one occasion, he examined them and not being able to understand ³⁷⁹ them, as he was “not much on figures,” he, in 1904, got one Hedeman, who at times came to his house on business, to examine and to explain the books to him and it was then shown that the aggregate amount on deposit in the banks issuing the books, was $11,964.30.

These books, as testified to by George, remained in his possession for nearly two years, when his father said to him “George, you attend to those bank books in town and have the interest put in them.” In reply thereto George said “I don’t know anything about them banks,” and his father said, “what, you don’t know anything about the banks ? * * * Well then, take them down to John and let John take them down and have the interest put in them.” He took them down and gave them to John after telling him, as he had been directed by his father, to carry them to the bank and have the interest put in them. He said “all right” and George never again had the books in his possession. The father thereafter spoke of them but said it made no difference whether the books “laid here or there.” He said “the money in these books belonged to him.” George also testified that while the books were in his possession not one cent was drawn from bank on them. His father, at such time, had another book upon which he drew what money he needed, although he never saw “inside” that book.

The books remained with John until they were given by him to his brother Charles, this was in consequence of a conversation had by George with John while on a visit, with his wife, to the home of John. At this time John was in bad health and was worried because he had these books and did not seem to know what disposition to make of them. He said his having the books