Nunn v. Boal , 29 Ohio App. 141 ( 1928 )

This action is one for specific performance of a contract relating to real estate. A general demurrer to the petition was sustained and the petition dismissed.

The petition avers in substance that the defendant is, and was at all times herein mentioned, owner of the undivided half of certain described real estate in the city of Toledo; that one Lizzie Boal was the wife of the defendant, and prior to her death was the owner of the other undivided half thereof; and that the defendant is the widower and sole heir of Lizzie Boal. The petition avers that about January 20, 1927, the plaintiff entered into an oral contract with Lizzie Boal and the defendant, whereby they promised, in consideration that plaintiff should abandon his home and bring his family and live with them in the above premises, and care for, nurse, and support them during their natural lives, that they would give and devise the above property to plaintiff at their death, or provide in some other proper manner that plaintiff should receive the above premises upon their decease. The plaintiff avers that he has fully performed all of the conditions of the agreement on his part; that he abandoned his own home and went with his family and lived with Lizzie Boal and the defendant in the above premises, and cared for and nursed and supported Lizzie Boal until her death, and cared for and supported and nursed the defendant, so far as necessary, until the defendant left the premises about April 30, 1927, and refused to abide by his contract, and refused to allow the plaintiff to perform his part thereof, although plaintiff has at all times been ready, willing, and able to carry out the agreement on his part, and has so offered. It is averred, also, that Lizzie Boal died about April 17, 1927, and did not devise or leave her property to the plaintiff by last will or otherwise.

It is further averred that at all times when the plaintiff did support, nurse, and care for Lizzie Boal she was sick and infirm; that the defendant is old and unable to find work; and that the care, service, and nursing which the plaintiff furnished were not intended to be and not susceptible of being measured by a pecuniary standard, and are like those of a son to his aged and infirm parents. And he avers that the refusal of the defendant to carry out the contract operates as a fraud on the plaintiff.

The authority which is relied on to sustain the claim that the petition states a good cause of action is Newbold v. Michael,110 Ohio St. 588, 144 N.E. 715. In that case it was held that equity will not enforce by specific performance a verbal contract to leave real and personal property to another by will in consideration of personal services, unless the services were of a character not intended to be and not susceptible of being measured by a pecuniary standard, or unless the contract had been so far executed that a refusal would operate as a fraud. It is contended that the averment of the petition that the care and services and nursing were not intended to be and were not susceptible of being measured by a pecuniary standard brings the case within the latter portion of the syllabus of the authority just cited. This court, however, is of the opinion that the averment is no more than the statement of a conclusion, and a demurrer admits only such facts as are well pleaded.

The petition shows that the services which were being performed were the ordinary services of caring for and nursing elderly people. It is within the knowledge of every lawyer that compensation for such services is readily assessed in an action at law to recover the value thereof. It is only a contract for the performance of such peculiar and unusual services as will not permit of the value thereof being assessed by a jury that will justify a court of equity in decreeing specific performance.

The petition discloses that the defendant has repudiated the contract and refused to allow the plaintiff to further perform. A court of equity could not order specific performance on the part of the defendant, without, at the same time, requiring the plaintiff to specifically perform the remainder of the services which he contracted to perform, but a court of equity will not, as a rule, order the specific performance of personal services. The principle is stated in 25 Ruling Case Law, 305, in the following language:

"By reason of the doctrine of mutuality, a court of equity will refuse to decree the specific performance of an executory contract wherever it creates a duty from the plaintiff of such confidential or personal nature that the court could not have enforced it at the instance of the defendant."

For the reasons given, the judgment will be affirmed.

Judgment affirmed.

WILLIAMS and LLOYD, JJ., concur.