Murdoch v. West, (1895) 24 SCR 305

Supreme Court of Canada

Murdoch v. West (1895) 24 SCR 305

Date: 1895-03-11

Mary Ella Murdoch, Administratrix of the Estate of Henry E. Murdoch, Deceased (Plaintiff)

Appellant

and

Philo T. West and Robert H. Lamb, Administrators of the Estate of Robert West, Deceased (Defendants)

Respondents

1894: Nov. 7; 1895: Mar. 11.

Present:—Sir Henrv Strong C. j., and Taschereau, Gwynne, Sedgewick and King JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Contract—Specific performance—Agreement to perform services—Relationship of parties.

M., on his father’s death at the age of three years, went to live with his grandfather W. who sent him to school until he was sixteen years old and then took him into his store where he continued as the sole clerk for eight or nine years when W. died and M. died a few days later. Both having died intestate the administratrix of M’s estate brought an action against the representatives of W. for the value of such services rendered by M. and on the trial there was evidence of statements made by W. during the time of such service to the effect that if he (W.) died without having made a will M. would have good wages and if he made a will he would leave the business and some other property to M.

Held, reversing the decision of the Supreme Court of Nova Scotia, Gwynne J. dissenting, that there was sufficient evidence of an agreement between M. and W. that the services of the latter were not to be gratuitous but were to be remunerated by payment of wages or a gift by will to overcome the presumption to the contrary arising from the fact that W. stood in loco parentis towards M. There having been no gift by will the estate of W. was therefore liable for the value of the services as estimated by the jury. McGugan v. Smith (21 Can. S. C. R. 263) followed.

Appeal from a decision of the Supreme Court of Nova Scotia[1] setting aside a judgment at the trial for the plaintiff and ordering judgment to be entered for defendants.

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The material facts of this case are sufficiently set out in the above head-note. The case was twice tried, the jury giving a verdict for plaintiff on each occasion, the damages on the last trial being assessed at $1,950 at the rate of $325 a year for six years. The court en banc set aside the last verdict holding that Robert West the grandfather of the deceased Henry E. Murdoch stood in loco parentis towards him and there was nothing to rebut the presumption arising from the relationship that the services performed by West were to be gratuitous.

Ross Q.C. for the appellant. There is nothing to distinguish this case from McGugan v. Smith[2] where the plaintiff recovered for services performed for her grandfather on evidence very like that in this record. See also Walker v. Boughner[3].

Borden Q.C. for the respondent.

THE CHIEF JUSTICE.—I am of opinion that there was ample evidence for the consideration of the jury to shew that services were rendered by the plaintiff’s husband to his grandfather as a clerk in the management of his business; and that such services were understood not to be gratuitous, but were to be remunerated by the payment of wages, or by a gift by will. In short that there was proof of an agreement to that effect between the parties. The case therefore in all legal aspects resembles that of McGvgan v. Smith (1), and must be governed by the same principle. There is nothing in the relationship of the parties disentitling the plaintiff to recover, if the services were agreed to be paid for, as the jury have found they were. When services are rendered to a person standing in loco parentis to the person rendering them there.

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is a certain presumption that such services were not to be remunerated by wages, but such presumption may be overcome by evidence of an express agreement. Here there was, as I have said, evidence of such an agreement. It was for the jury to weigh this evidence, and if they found there was an agreement and there having been no gift by will, to estimate the value of Murdoch’s services. They have found for plaintiff at the rate of $325 per annum.

The appeal must be allowed with costs and the judgment of the Supreme Court of Nova Scotia must be discharged, and judgment entered for the plaintiff for $1,950 and interest from the date of the verdict together with the costs of the plaintiff in the court below.

TASCHEREAU J.—I would allow this appeal and restore the judgment in favour of the plaintiff. I cannot see how the defendant could get a dismissal of the action upon the finding of the jury.

GWYNNE J.—The evidence in my opinion wholly fails to establish that any contract of service had been entered into between the deceased Henry Murdoch and the deceased Robert West, his grandfather, who had brought up and maintained his grandson from his infancy as one of his own family and at the age of 16 took him into his own shop to assist him in the small retail business as a general country dealer which he carried on. The evidence goes no further than to show that the grandfather had the intention, with knowledge or expectation of the grandson, to provide for the latter by his will, and this doubtless he would have done if he had not deferred making a will until it was too late. He died intestate and within a week the grandson who had recently been married died also. The case

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is, in my opinion, distinguishable from McGugan v. Smith[4]. In that case there was an express promise proved that if the plaintiff would remain with her grandfather until either she should marry or he should die he would provide for her by his will as amply as for his daughters, which promise he did not fulfil although he did leave to her a bequest by his will. This promise was made to induce the plaintiff in that case to remain with her grandfather and she accepted the terms offered and did remain with him doing for him all sorts of menial services until she arrived at the age of 25 when she married.

In the present case no such contract is proved. It is said that the jury by their answers to the questions submitted to them have found that the deceased Robert West, did arrange with his grandson that he would compensate the latter for his services, but the evidence justified a finding to no greater extent than that the grandfather had an intention to make a provision for his grandson by will of which intention they might perhaps have found that the grandson was aware; but there was no evidence whatever that any contract for services to be compensated by wages or by testamentary bequest had been entered into between the grandson and grandfather. We cannot, I think, allow this appeal without giving to the judgment in McGugan v. Smith (1) an effect which the evidence in the present case does not warrant. I think the appeal must be dismissed.

SEDGEWICK and KING JJ. concurred in the judgment of the Chief Justice.

Appeal allowed with costs.

Solicitor for the appellant: James A. McLean.

Solicitor for the respondents: F. B. Wade.