Appeal, No. 185, Jan. T., 1949, from decree of Orphans' Court of Union County, March T., 1948, No. 18, in case of Gay E. Stafford v. Warren S. Reed, Admr. d.b.n., Estate of John Samuel Hummel, deceased. Decree reversed.
Merrill W. Linn and William H. S. Wells, with them William F. Bohlen, Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul for appellant.
Albert W. Johnson, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE HORACE STERN
An appellate court will ordinarily accept as conclusive the findings of fact of a chancellor approved by the court en banc, but this rule is not applicable where the evidence, in order the prevail, must be clear, precise and indubitable or where it must meet some other prescribed standard of proof. Whether findings are supported by evidence of the quality is always a question of law and therefore reviewable by the appellate court.*fn* In the present case it is our opinion that they are not so supported, -- a conclusion which requires a reversal of the decree entered by the court below.
Decedent, John S. Hummel, owned two adjoining properties in Lewisburg and also a small amount of personal property. He lived in one of these properties and rented out the other. His wife died in 1939 and his only child, a son, in February, 1947. He himself died at the age of 83 years in December, 1947, leaving as his only heir a granddaughter who resides in Chicago.
Claimant, Gary E. Stafford, nursed Mrs. Hummel in her last illness. After Mrs. Hummel's death she continued to live in the property occupied by Hummel as his housekeeper, and remained in that capacity until his death. Her claim, as set forth in her petition, is that four days after Mrs. Hummel's death Hummel orally requested her to live in his house, perform for him all the duties of a housekeeper, and, during his illness, nurse and take care of him during the remainder of his life; in return the orally agreed to make a will giving and conveying to her for such services all of his property, real and personal; she orally agreed to his request and, relying on his promise, remained with him from 1939 until his death in 1947, performing the household work, nursing him from time to time, and assisting him by financial advancements, for all of which services and advancements she received no compensation at the time. Hummel died without a will. Claimant prayed for a decree of specific performance of the alleged agreement. This the court below refused, but it awarded claimant the sum of $3,888 as compensation for the services she rendered decedent and the sum of $800 in satisfaction of her claim for money loaned to him. The administrator d.b.n. of Hummel's estate appeals from that award.
That the court below was right in refusing specific performance is beyond question. Decedent's estate consisted almost entirely of real estate and the Statute of Frauds bars specific performance of a contract to convey or devise real estate where the alleged agreement is not evidenced by writing: Anderson Estate, 348 Pa. 294, 35 A.2d 301. The only relief available in such a case is the recovery of money damages, the measure of such damages being, not the estate promised to be given, but the value of the services rendered on the faith of the agreement: Kauss v. Rohner, Administrator, 172 Pa. 481, 488, 489, 33 A. 1016; Anderson Estate, 348 Pa. 294, 296,
A.2d 301, 302; Bemis v. Van Pelt, Executor, 139 Pa. Superior Ct. 282, 288, 11 A.2d 499, 502; Leppold's Estate, 145 Pa. Superior Ct. 60, 63, 64, 20 A.2d 827, 828; McWilliams Estate, 162 Pa. Superior Ct. 299, 305, 56 A.2d 241, 244, 245. In order to recover such damages, however, it is incumbent upon the claimant to prove the making of the contract, for, when one claims on an express contract to pay a fixed compensation, he cannot, on failure to prove the contract, recover on a quantum meruit for the value of his services: Mitten v. Stout, Executor, 284 Pa. 410, 412, 131 A. 360; Cramer v. McKinney, Executors, 355 Pa. 202, 204, 49 A.2d 374, 375. This is especially so because, if the suit were ...