Supreme Court of Canada
McGugan v. Smith, (1892) 21 S.C.R. 263
Date: 1892-06-17
Alexander McGugan and Others (Defendants) Appellants;
and
Louisa Smith (Plaintiff) Respondent.
1892: June 17.
Present: Sir W.J. Ritchie C.J. and Strong, Taschereau, Gwynne and Patterson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Contract—Specific performance—Agreement for service—Remuneration.
S., a girl of fourteen, lived with her grandfather who promised her that if she would remain with him until he died, or until she was married, he would provide for her by his will as amply as for his daughters. She lived with him until she was twenty-five when she married. The grandfather died shortly after leaving her by his will a much smaller sum than his daughters received, and she brought an action against the executors for specific performance of the agreement to provide for her as amply as for the daughters, or, in the alternative, for payment for her services during the eleven years. On the trial of the action it was proved that S., while living with her grandfather, had performed such services as tending cattle, doing field work, managing a reaping machine, and breaking in and driving wild and ungovernable horses.
Held, reversing the decision of the Court of Appeal, that the alleged agreement to provide for S. by will was not one of which the court could decree specific performance. But
Held further, that S. was entitled to remuneration for her services and $1,000 was not too much to allow her.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment for the plaintiff at the trial.
The facts necessary to understand the decision in this case are sufficiently set out in the above head-note.
The case was tried by Mr. Justice Falconbridge who held that the agreement made with the plaintiff by her grandfather was sufficiently proved, and that she
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was entitled to have the same specifically performed. He made a decree accordingly, allowing the plaintiff $1,000 to place her in the same position under the will as the testator’s daughters, which amount was to include her legacy. The Court of Appeal affirmed this decision and the defendants appealed to this court.
Glenn for the appellants.
J.A. Robinson for the respondent.
Sir W.J. RITCHIE C.J.—I am of opinion that this appeal should be dismissed. The strong inclination of my mind is against the agreement in this case being one as to which the courts could decree specific performance, but I think the evidence shows quite clearly that the services performed by the plaintiff were not intended to be gratuitous. Then it becomes a question as to what the plaintiff is entitled for such services under the quantum meruit, there being no wages fixed by the testator who had only agreed to provide for her remuneration by his will.
The plaintiff performed work which no woman should be called upon to perform, such as breaking in wild and ungovernable horses, cleaning out stables, doing all sorts of field work and other things usually done by a man. She appears to have been a very capable young woman, and I do not think that $1000 is too much to allow for her services from the time she was fourteen years of age until she was married, which would be about eleven years. To give her that amount would only be paying at the rate of $7.50 a month, and if I may be allowed to speak from my own knowledge of what services of the kind are worth I would say that the remuneration is very moderate as I have never been able to procure servants here at such a rate.
Under the circumstances shown in the case I think this appeal should be dismissed and the judgment of
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the court of first instance varied by assessing the damages at $1000 in full for the plaintiff’s services, including the amount left her by the will.
STRONG J.—I have no doubt that the agreement sought to be enforced in this case is one as to which specific performance would not be decreed. I very much doubt if it has any validity at all as an agreement, or if it is anything more than a representation or promise of future favours.
The grandfather of the respondent did not stand in loco parentis towards her. He considered her to be a capable worker and knowing that was anxious to secure her services. Then to look at the nature of the services that were performed, if they had been ordinary household services, such as are usually performed by a young girl, the case would have been different; but she performed very extraordinary services. We are told that she looked after 20 or 30 cattle; cleaned out stables, cut grass, drove horses; managed a reaping machine; broke in and managed wild, ungovernable horses. This, then, is not a case in which to apply any presumption arising from the relationship of the parties that the services were rendered gratuitously.
The respondent is, in my opinion, entitled to recover as on a quantum meruit without regard to the representation.
As regards the amount recoverable I should be prepared to give the respondent $1,000 in addition to her legacy, but I think that at all events she should have the $1,000 inclusive of the legacy, and she should be at liberty to apply if necessary for an administration order.
The appeal should be dismissed with costs.
TASCHEREAU J.—Concurred.
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GWYNNE J.—The question is not whether the plaintiffs grandfather has treated her as well in his will as he ought to have done but whether she can assert the claim which she does as one enforceable in law.
I can not consider myself bound by the finding of the trial judge in this cause as to the precise terms of the contract. I concur entirely with Mr. Justice Osler. Moreover, having all the evidence before us, I do not think the trial judge was justified in finding the contract to have been as stated by the plaintiff’s mother. If it was as stated by the plaintiff herself I think the legacy left by the will was in full compliance with that agreement; moreover the Ontario statute that the contract sued upon should be confirmed was not complied with. The respondent by her counsel agreeing to accept $1,000 in full satisfaction of legacy and all claims the appeal is dismissed with costs and the judgment of the court below ordered to be altered accordingly. Costs of action to be out of the estate.
PATTERSON J. concurred
Appeal dismissed with costs.
Solicitor for appellant: James M. Glenn.
Solicitor for respondent: John A. Robinson.
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