
    Jennie M. Conway, Respondent, v. Lawrence Cooney, as Administrator, etc., of Luke Cooney, Deceased, Appellant.
    Third Department,
    March 7, 1906.
    Executors and administrators — claim against estate for board furnished by decedent’s daughter—failure to show promise to pay—when no recovery on quantum meruit.
    The plaintiff, a married.woman, who had lived- with her father in.his house, which she managed for the mutual benefit of her own family and her father, and for Which she paid no rent, made a claim against his estate for board furnished during his life. The referee made no finding that the decedent ever promised to pay the plaintiff any sum whatever for the board furnished, or that the plaintiff ever promised to pay anything for the use of the house furnished by the decedent. It was also shown that she had never presented a bill for the board furnished, although she had made out a bill during his lifetime.
    
      Held, that upon the facts found no action arose against the father to pay upon a quantum meruit;
    
    That evidence of an alleged conversation between the decedent and the claimant’s husband, in which decedent said that he thought it would be cheaper for him to board with the plaintiff, and that he would pay her three dollars and fifty cents a week, and other evidence of the plaintiff’s daughters substantially to the same effect, was inconsistent with an agreement to pay what the board was worth, and that such evidence was insufficient to show a definite promise to pay;
    That as between father and daughter living in the same family an express contract to p'ay for board must be established by clear and convincing proof;
    That a judgment for the claimant should be reversed on the law and the facts.
    Appeal by the defendant, Lawrence Cooney, as administrator, etc., of Luke Cooney, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 9th day of March, 1905, upon the report of a referee.
    This is an appeal from a judgment entered upon the report of a referee, appointed under section 2718 of the Code of Civil Procedure. In 1884 the plaintiff, Jennie Conway, who is a married daughter of the deceased, Luke Cooney, left her husband’s home and, -with her two children, went to live with and to work for her father at an agreed price, as claimed, of three dollars per week. Her father was then an old man, and was living in llis own house without a wife or other member of his family to keep house for him, except a young daughter about eleven years of age. In December, 1888, that daughter died, and from and after the next summer this plaintiff, instead of working for her father, seems' to have taken charge of the house, furnished all the means necessary to run the same, and the father thenceforth boarded and lodged with her continuously up to the time of his death, which .occurred in February, 1902. It appears that in 1901, and while the father was still living, the plaintiff made out a bill against him for work and labor rendered to him from 1884 up to that time, but it appears that such bill was never presented to. him. In September, 1903, a bill was presented to the administrator in which the plaintiff seeks to recover from his estate for board and lodging furnished to him from 1889, at the rate of fifteen dollars per month, up to December 8, 1901, and from and after that date at the rate of ten dollars per week until his death. Such bill, so presented, was rejected by. the administrator and was referred under the statute and tried before the referee to whom so referred. Such referee reported in favo? of the plaintiff in the sum of $1,524.71, and from the judgment entered thereon this appeal is taken.
    
      P. C. Dugan and Abner Robertson, for the appellant.
    
      J. B. McCormick, for the respondent.
   Parker, P. J.:

It seems that from 1884 to 1889 the plaintiff worked for her father, the deceased, Luke Cooney, in his family, under such circumstances as indicated that the services so rendered were not for ■ him. but for the mutual benefit of her own family and that of her said father, and no claim is made by her in this proceeding.for any service rendered during that period. In December, 1888, however, it. appears that the young daughter of her said father, who had previously lived with him, died, and a young son left him and went away to earn his own living. That left the father the only member of his family, and the plaintiff and her two daughters still living in the house with him; her family consisted of three, while his had' become reduced to one. The referee, in his “ Eighth ” finding of fact, finds that at that time a new contract was made between the plaintiff and her said father, which went into effect August 1, 1889. What the terms of that contract were he does not find, but he find’s what they did thereafter substantially as follows : That from that date the father furnished a furnished house to- the plaintiff, her family and her guests, including rooms to conduct dressmaking in, and a supply of garden truck, reserving a store on the ground floor of the cottage and/certain outbuildings in the rear thereof; and that, the plaintiff furnished to her said father necessary table board, room care, including cleaning and heating, necessary washing, mending and nursing, and that this condition continued up to to the time of her father’s, death, which occurred February 18, 1902, at the age of eighty-two years.

There is a finding that the board, etc., so furnished was worth $5 per week, and that the house, etc., so furnished by the father to the plaintiff, was worth the sum of $125 per year, but there is no fact found indicating that the father ever promised to pay to the plaintiff any sum whatever for the board, etc., so furnished him, nor that,the plaintiff ever promised to pay anything whatever for the use of the house, etc., so furnished to her. I discover no finding of any fact in the report, other than as above stated, showing that the father ever became liable to pay for the board, etc., so furnished him.

From the facts so found I am of the opinion that no inference can be drawn that either party promised to pay to the other any money whatever. What they did do we may assume they agreed to do; but what is there in such facts indicating that the father agreed to pay to his daughter what such board, etc., was fairly worth, or what to indicate that the daughter then agreed to pay or allow to him what the use of the property she so occupied and received was reasonably worth in the market? In my judgment, from such facts it is rather to be inferred that what the daughter received from the father was deemed satisfaction for wiiat she furnished to him, and particularly should this be inferred when we consider that at no time during the twelve and a half years that this condition continued did the daughter complain against the father for more payment for his board, or never at any time did either of them make any attempt to adjust what such board, etc., was reasonably worth, or what fairly ought to be charged against the daughter for her use of the house and garden truck that she occupied and enjoyed. So far as the facts found by the referee are concerned, it would seem that after the year 1889, as before, the arrangement with the father was that they should still live as one family, both contributing as best they could to the general expense of their living. Concededly the daughter was a dressmaker by trade, and could earn more or less that way. Concededly the father was an old man, without work and unable to longer carry on his store, which was then rented for $100 per year, and which seems to have been his sole and only income save what he could raise in his garden. Each put in all they'liad. The father, from time to time, paid such money as he could spare towards the common support, and from time to time the daughter wrote to her brothers for assist- " anee, and usually seems to have received it, and never tiomplained that her father did not pay what he had agreed to. I conclude that from the facts found in the referee’s report ho cause of action arises against' the father to pay upon- a quantum meruit for the board; etc., that he so received, and evidently no direct promise to so. pay is to be found therein. • . .

It is claimed by the plaintiff, however, that there is evidence in the case from which a direct promise to pay what- the board was fairly worth might have been found by the referee. Such' evidence is claimed to .have been given by John Conway, the husband- of the plaintiff,-and by her two daughters, Mamie and Hattie. That of the husband is tó the effect that the father told him, soon after .the daughter Katie’s death, that he thought it" would be cheaper for him to board with the plaintiff,, and that he would pay her three, dollars , or three dollars and one-half per week. If this is to. be .of any force it repels the idea of an ageement to pay what the board was worth, and fixes the price at.not more than three dollars and one-half per. Week. But it falls far short of proving that any agreement for any price was ever -made. ' The daughter Mamie is substantially to the same effect, except that he would pay What the board was worth! The daughter Hattie goes a-step-farther,-and says that she heard, the father tell the plaintiff that now Katie wás- dead it would be cheaper for him to board with her, and that the mother replied that she Would run the house and he could, board with her. She heard, nothing said as to price, nor- does she, state that anything was said as to how she was to be paid.’ She..heard them say, however, that he would fix up a room for her to carry on the dressmaking, business _.and she could cany it on.

I have carefully read the evidence of these witnesses, and I can understand why the referee has not attempted to state the term's of the contract then and there made .between the parties. Neither of these witnesses state enough to show any definite agreement made,, and from all their evidence we cannot conclude, with any certainty;' that the deceased then assumed any obligation to pay any sum for his board,, nor to in any way compensate the plaintiff therefor, other than such as she would derive from .the use of his house and. property in the manner above described. - ■ ■/ It must be borne in mind that the conduct of the plaintiff, during all these years,- is utterly inconsistent" with the contract sought to be deduced from this evidence. She did not keep any account against her father for the board, etc., now claimed, nor does she seem to have credited him with anything whatever for the use of the house, etc., received from him. As late as- 1901, and while he was - still living, she made up a bill against him. But instead of then claiming that he had been boarding with her since 1889 and charging for that, she claims that all the time' from 1884 down she had been keeping -house for him at the rate of three dollars per week, thus utterly ignoring any change in the relations made , in 1889. So in the bill that she presented to the administrator after her father’s death, and which was referred in this proceeding, she claims the contract made in 1889 was for board at the" price of fifteen dollars per month, thus squarely contradicting the-conclusion.of the referee that the deceased was to pay what it was reasonably worth, viz., five dollars per week. And in such last bill she does not give any credit whatever for the use by her of the house, etc., which concededly she has had, thus again contradicting the supposed contract made in 1889 and upon which the conclusion of the referee seems to be based. Certainly there is not sufficient evidence to warrant the finding of a contract that adds anything to the obligations which may fairly be implied' from the conduct of the parties merely, and that, as we have already seen,, is not sufficient to sustain the claim now made by the plaintiff. As between- father and daughter living in the same family we should not conclude that such a direct contract existed, except upon clear and convincing proof. (Matter of Hart v. Tuite, 75 App. Div. 323, 324; Robinson v. Carpenter, 77 id. 520; Matter of Van Slooten v. Wheeler, 140 N. Y. 624.)

My conclusion, is that, the judgment should be reversed on the law and the facts and a new trial granted, with costs to 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,  