Agnes Bovee and Orra Bovee, Respondents, v. Charles Barrett, Appellant

Agnes Bovee and Orra Bovee, Respondents, v. Charles Barrett, Appellant. Third Department, November 14, 1906. Contract — oral promise to convey lands in consideration of support — recovery on quantum meruit by promisee — measure of damages. An oral contract by a landowner to convey a farm if the promisee works the same and provides the owner with board, clothing, etc., being void, the promisee after part performance on his part is only entitled to recover on a quantum, meruit when the owner repudiates the contract. In ascertaining the plaintiff’s damages the value of farm produce used by him 'and the value of the rental of .the farm house, etc., should be deducted from the value of the board and support furnished the defendant. Appeal by the defendant,- Charles Barrett, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 17th day of April, 1906, upon the report of a referee. . This an appeal from a judgment in-favor of the plaintiffs upon the report of a referee. The referee finds that the plaintiffs and the defendant entered into an oral agreement on or about January 1, 1903, by which the plaintiffs were to move upon defendant’s farm, care for him and provide him a home thereon, with neces^ sary board and clothing and other necessities, and do the work- on such farm except such work as the defendant himself might perform, in consideration of which the defendant agreed to convey said farm and premises to the plaintiffs. The plaintiffs removed to the farm, entered upon the. performance of the agreement, and on or about October 20,1904, the defendant repudiated the agreement and caused them to remove from, the farm, and the referee allows the plaintiffs for boarding the defendant fifty-five weeks at three dollars and fifty cents per week and. for the various items of clothing, expenditures, and the work performed by Bovee upon the farm. Mrs. Bovee performed the usual services of a woman in the household ; Mr. Bovee performed no real services on the farm except a few days in haying, for which the referee awards him compensa-' .tian at their full value. At the time of removing from the farm the hay and grain was left thereon except such as had been consumed by the stock. The plaintiffs had the use of the house and buildings and the garden, and removed some potatoes and apples from the farm and used the proceeds of the farm, such as butter and vegetables, in supporting the family so far as they would go, and sold butter and bought provisions and other things with the proceeds. With the farm the defendant furnished two cows, as- the plaintiffs claim, and three cows as he claims, the plaintiffs claiming to own'one of the cows themselves. The plaintiffs brought upon the farm a colt and some pigs and hens, and took them with them when they left. The defendant claims the rental value of the farm was about one hundred and fifty dollars per year; the plaintiffs claim its value was about sixty dollars per year. It is agreed that if the occupants did not get the full proceeds of the farm the rent Would be less, and the value of the house and garden would be from- thirty-five dollars to sixty dollars a year. William T. Moore, for the appellant. Charles M. Davison [S. M. Richards of counsel], for the respondents. [MAJORITY — Kellogg, J.:] Kellogg, J.: The agreement was not in writing and is not alleged by the Complaint to have been unwritten, hut the complaint alleges that the defendant repudiated the agreement and deprived the plaintiffs of the benefit of it, and then alleges their services and the items furnished under the agreement, and the bill of particulars emphasizes these provisions and shows definitely the particular items sought to be recovered. The referee was right in basing the recovery upon a qucmbum meruit. He erred, however, in charging the defendant three dollars and fifty cents per week for board during the tim;e the contract was being observed, when the defendant was furnishing the house many of the vegetables, the milk, butter and many things going to make up the board. If the defendant was to be charged full price for the board and lodging and all services rendered, it must follow that the plaintiffs must account for such proceeds of the farm as they had and for the rental of the house and garden ; also for products of the farm used by the colt and pigs. In not allowing the -defendant credit for the items suggested the finding.8 are against the evidence and do an injustice to the defendant. The judgment is, therefore, reversed, the" referee discharged and a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.