#### Murtha, Respondent, vs. Donohoo, Executor, Appellant.

*April 6*

May *14, 1912.*

*Limitation of actions: Pleading: Claims against decedent: Contracts: Validity: Consideration: Oral promise to pay for services by legacy: Breach: Measure of damages: Evidence.*

1. With reference to a claim against the estate of a decedent the statute of limitations must always be considered although not pleaded.

2. An oral promise, accepted by the promisee, to compensate by,, a legacy services previously performed for the promisor by one not a member of his family, is based upon a sufficient consideration and is valid and binding.

3. Such an agreement is deemed a new and substitutionary contract, not within the purview of sec. 4243, Stats. (1898), and not affected by subsequent expiration of the time within which an action upon the original liability to pay for the services must have been brought had such liability continued.

4. Where the promise to compensate by a legacy is based upon a past or executed consideration, such as services previously performed and moneys paid out at the request of the promisor, the amount recoverable for a breach thereof is measured by the reasonable value of the services performed and the amount of the moneys so paid, with interest at the legal rate.

5. The amount agreed to be paid by legacy in such a case may* be proved as having some evidential bearing on the reasonable value of the services where the disparity is not too great, but is not conclusive.

*482Appeal from a judgment of tbe circuit court for Grant county: Geobge ClemeNtsoN, Circuit Judge.

*Reversed.*

*S. E. Smalley,-ior*tbe appellant.

*Maurice McKenna,*for tbe respondent.

On bebalf of *Josephine G. True,*a residuary legatee, there was a brief by *F. R. Bentley.*

Tbe following opinion was filed January 30, 1912:

Pee OuexaM.

Tbe special verdict in tbis case is as follows:

> “(1) During tbe vacations of Lawrence J. Vaugban, tbe deceased, during tbe six years prior to bis ordination as a priest in 1898, was be frequently at tbe borne of *Catharine Murtha*in tbe city of Pipón, and was be there received as a member of tbe family, and did be receive, besides meals and lodging that be chose to taire in their bouse, money from one or tbe other of them to help him, and also clothing purchased with tbe money of John Murtha, and did John Murtha pay for him a dentist’s bill of about thirty dollars ? *A.*Yes.

> “(2) Did be promise to pay them for what they bad done for him? *A.*Yes.

> “(3) Did said Lawrence J. Yaugban, in tbe spring of 1901, at Pipón, say to John and *Catherine Murtha*in substance that for what they bad done for him be would by bis last will give to John Murtha tbe sum of a thousand dollars, and did Jobn Murtha say to him at that time that that would be all right? *A.*Yes.”

By see. 3841, Stats. (1898), construed in *Martin v. Estate of Martin,*108 Wis. 284, 84 N. W. 439, tbe statute of limitations need not be pleaded against such a claim. By sec. 4243, Id., no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take tbe case out of tbe operation of tbis chapter (on limitations) unless tbe same be contained in some writing signed by tbe party to be charged thereby.

A reargument of tbis case is ordered upon tbe question *483whether the claim of the plaintiff as established by this verdict is barred by the statute of limitations.

Eor the appellant there was a brief by *8. B. Smalley*and *F. B. Bentley,*and oral argument by *Mr. Bentley.*

Eor the respondent there was a brief by *Maurice McKenna,*attorney, and *Carter & Pedrich,*of counsel, and oral argument by *8. M. Pedrich.*

The cause was reargued on April 6, 1912.

The following opinion was filed May 14, 1912:

TiMLiN, J.

The respondent filed a claim against the estate of Lawrence J. Vaughan, deceased, for $1,000 upon contract hereinafter mentioned. Upon appeal to the circuit court judgment was given for respondent, and the executor appeals to this court, contending that the circuit court erred in not ascertaining and giving judgment for the reasonable value of the money paid and services performed instead of for the agreed sum of $1,000. The jury returned the special verdict set forth in the order for reargument, *ante,*p. 482,134 N. W. 406. We find the verdict supported by evidence. Respondent had judgment upon the verdict. The statute of limitations in such cases must always be considered although not pleaded. Sec. 3841, Stats. (1898). Therefore the serious question arising is that upon which reargument was ordered: Does the verdict, by force of sec. 4243, Stats. (1898), disclose that the right of recovery is barred by lapse of time ? We are not much aided by appellant’s brief on reargument. He failed to cite *Thompson v. Orena,*134 Cal. 26, 66 Pac. 24; *Chace v. Trafford,*116 Mass. 529; *Bullard v. Lopez, 7*N. Mex. 561, 37 Pac. 1103; *Reed v. Smith,*1 Idaho (Prickett) 533; *Hill v. Perrin,*21 S. C. 356; *Shapley v. Abbott,*42 N. Y. 443; or *Stiles v. Laurel Fork O. & C. Co.*41 W. Va. 838, 35 S. E. 986, or the cases referred to in these decisions,. *484or any case throwing much light on his side of the controversy. It seems quite impossible to reconcile *Thompson v. Orena, supra,*with *Devine v.*Murphy, 168 Mass. 249, 46 N. E. 1066, cited by respondent, and we shall not attempt it. The question is new in this state and we are not bound by either precedent. It has however been decided by this court that an oral ■contract based upon a valid consideration to leave the promisee a legacy (personal property) is valid and enforceable. *Slater v. Estate of*Cook, 93 Wis. 104, 67 N. W. 15 ; *Jilson v. Gilbert,*26 Wis. 637. It is also settled that services previously performed by one not a member of promisor’s family constitute a good consideration for a promise to pay for such .services. *Jilson v. Gilbert, supra; Silverthorn v.*Wylie, 96 Wis. 69, 71 N. W. 107. We have before us a case in which, •after a similar right of action had accrued in favor of the respondent and the statute of limitations had begun to run against this right of action, an oral promise was made by decedent to compensate respondent by leaving him a legacy. To •this the respondent assented. The first question which arises is whether or not such agreement is supported by a consideration. In *Fanning v. Murphy,*126 Wis. 538, 105 N. W. 1056, the majority opinion is to the effect that a mere request for the ■extension of the due date of a debt at the contract rate of interest, and consent thereto, does not satisfy the essentials of a binding contract for an extension of time of payment. In *Jilson v.*Gilbert, 26 Wis. 637, it was held -that a promise to reward, by a provision in the promisor’s will, services previously rendered by the promisee, is valid. These two> cases may stand together. They are not necessarily inconsistent. Where such agreement is made it insures to the promisor the personal use and enjoyment of his property during his life, and the promisee realizes on the promise only in case the promisor leaves estate unconsumed. This is surely a benefit ■or advantage flowing to the promisor and sufficient to support his promise to leave the legacy to his creditor. This,' how*485ever, is necessarily conditioned upon tbe agreement of the creditor to extend the time of payment until after the death of the debtor. The creditor, therefore, makes his promise to extend in consideration of a valid and binding promise to reward him by legacy. In a case in New York *(Patterson v. Patterson,*13 Johns. 379) the creditor, after entering into such an agreement and before the death of the promisor, began suit on his original demand, but his right of action was held barred by such agreement. In support of the like rule *see Campbell v. Campbell,*65 Barb. 639, and *Collier v. Rutledge,*136 N. Y. 621, 32 N. E. 626, and the *Patterson Case*has been cited with approval in *Todd v. Weber,*95 N. Y. 181 ; *Reynolds v. Robinson,*64 N. Y. 589; and other New York cases noted in Silvernail’s Citations. It may be that accurate analysis would disclose that there is no substantial difference between the contract in *Fanning v. Murphy, supra,*and *Jilson v. Gilbert, supra.*But if that be so, we refuse to extend the rule of *Fanning v. Murphy*to cases like this and *Jilson v. Gilbert.*

The agreement being valid and binding, what is the measure of damages for its breach — the value or amount of the original demand or the amount of legacy promised? In a case like the present, where the promise to compensate by legacy is based upon a past or executed consideration, the recovery must be limited to. the amount of the demand so to be compensated, or the reasonable value thereof where the amount is not fixed and definite. This is ruled by *Merrick v. Giddings,*1 Mackey (D. C.) 394, citing *Brown v. Crump,*1 Marsh. 567; *Granger v. Collins,*6 M. & W. 458; *Roscorla v. Thomas,*3 Q. B. 234; *Bradford v. Roulston,*8 Irish C. L. n. s. 468. See, also, 1 Parsons, Contracts (9th ed.) bottom pp. 508, 509, and cases; Wald’s Pollock on Contracts (3d ed.) pp. 199, 200, and cases.

In the cases decided by this court, although the precise question is not involved, this principle seems to have been kept *486in mind. *Bayliss v. Estate of Pricture,*24 Wis. 651, presented a situation where the consideration on the part of the , promisee was to be performed and was thereafter performed, but the promise to compensate by will did not fix the amount of compensation, so that this question was not there involved. A recovery for the reasonable value of the services was accordingly permitted. *Jilson v. Gilbert, supra,*presented the case of an executed or past consideration, that is to say, services performed before the promise to compensate by will was made; and while it is ruled that the promise was not within the statute of frauds and was binding, the intimation is that the value of the services measures the amount of recovery. In the case there cited *(Snyder v. Castor,*4 Yeates, 353) the promise was made after the services were rendered, no specific sum was promised, so this question did not arise. In *Patterson v. Patterson,*13 Johns. 379, the promise was that the promisee should have the promisor’s farm and that he intended to reward the promisee well, but the consideration was not past or executed. The court held that the promisee, having assented to this arrangement, could not maintain an action to recover compensation for these services during the lifetime of the promisor, his father, thereby construing the contract to amount to an agreement that the son should make no claim for compensation in his father’s lifetime. Should the father fail to make the provision by will, the court said the plaintiff might maintain an action to recover a reasonable compensation for his services. These last words are quoted and itali-cised by Justice Dixon in his opinion in *Jilson v. Gilbert, supra.*

Considering the case last cited and considering this case from the viewpoint of the law of contracts above referred to as found in the cases and text-books mentioned, we must hold that the promisee suing to recover for a breach of agreement to provide for him by will, where the services are performed prior to the promise so to provide, is entitled to recover only *487the reasonable value of tbe services so performed. Tbe parties may offer tbe testimony of any competent witness or other evidence of tbe amount agreed to be paid by legacy as having some evidential bearing on tbe reasonable value of tbe services where tbe disparity is not too great, bnt this is not at all conclusive upon the court or jury. Tbe true inquiry always is, in cases like this, What is tbe reasonable value of services performed and tbe amount of money paid to or to tbe use of decedent at bis request ? and tbe amount so ascertained with interest at tbe legal rate will be tbe amount of recovery.

Tbe judgment of tbe majority of this court is that tbe respondent’s recovery is not barred under sec. 4243, Stats. (1898), notwithstanding tbe agreement to compensate by legacy was not in writing. This agreement is not regarded as a new promise within tbe meaning of that statute, but an independent and substitutionary contract within a rule which they derive from *Jilson v.*Gilbert, *supra,*and which is clearly stated in *Devine v. Murphy,*168 Mass. 249, 46 N. E. 1066, and applied in *Davis v. Teachout’s Estate,*126 Mich. 135, 85 N. W. 475. On this point Mr. Justice MaRshall, Mr. Justice Vinje, and tbe writer yield with some reluctance to this view.

Tbe judgment appealed from must be reversed, and tbe cause remanded with directions to try and determine tbe question of tbe reasonable value of tbe services performed for and tbe amount of money paid out at tbe request of decedent, and award a recovery against tbe estate for the amount so ascertained.

*By the Court.*— It is so ordered.