Opinion
March 3, 1915.
Henning Eddy [ Edward D. Eddy of counsel], for the appellant.
Edgar T. Brackett [ Harold H. Corbin of counsel], for the respondent.
The action is to recover upon a quantum meruit for services rendered the defendant's testatrix. Upon September 21, 1907, plaintiff was in the employ of the defendant's testatrix. Upon that day the defendant's testatrix signed and delivered to plaintiff a paper, of which the following is a copy:
"THE NEW COLUMBIAN.
"E.C. QUINLAN, Prop. Opp. Convention Hall.
"AGREEMENT.
"SARATOGA SPRINGS, N.Y., Sept. 21, 1907.
"I hereby agree from this date to pay to Addie D. Plattenburg for the care of myself and house and services as heretofore, the sum of six dollars per week if she shall remain with me during my lifetime to provide for a generous sum to be paid to her at my decease with the distribution of my estate it is agreed further that she shall be subject to the dictation and direction of only myself.
"MRS. A.P. HALL."
(Endorsement.)
"I hereby certify that I was present and saw Mrs. A.P. Hall sign within paper.
" Sept. 27, 1907. G.F. COMSTOCK."
The plaintiff remained with the defendant's testatrix for between seven and eight years and until her death. She was given a legacy of $300 by the will. Her complaint alleges that her services were worth $21 per week for the full time, upon which she credits $6 a week paid, and $300 received under the legacy, and she demands judgment for the balance.
The main question arises upon the construction of this paper, The plaintiff contends that it contains a promise to pay her a generous sum for service to be rendered in the care of the promisor and of her household for the rest of her life. The defendant's contention is that there is here an agreement only to pay the sum of six dollars per week for services, and that the promise of a generous sum at death is the promise of a gratuity, which is unenforcible. While the promise to pay a generous sum may be indefinite, nevertheless there must be implied within that promise a definite agreement to pay the fair value of such services, should such value exceed the sum of six dollars per week. We cannot agree with the Special Term that it is for the jury to say what is a generous sum. That term is too indefinite to be speculated upon by a jury. Under the implied promise to pay a just compensation, however, the fair value of the services may be ascertained, and if they exceed the moneys that have been paid, including the legacy received, plaintiff would seem to be entitled to recover therefor. The order should, therefore, be affirmed, with ten dollars costs and disbursements, with usual leave to the defendant to withdraw the demurrer and answer upon payment of costs at Special Term and of this court.
All concurred; KELLOGG and HOWARD, JJ., in result.
Order affirmed, with ten dollars costs and disbursements, with usual leave to defendant to withdraw demurrer and answer upon payment of costs at Special Term and in this court.