
    Gilmour, Admr., v. Cross.
    
      Administrators and executors — Action for services rendered decedent — Pleading quantum meruit and proving contract, not fatal variance — Action not precluded by promise to pay without definite compensation arrangements — Family relationship not established, when.
    
    1. In action for personal services rendered decedent, petition declaring on quantum meruit, and proof showing contract, held not at fatal variance.
    2. Promise to pay for services rendered without definite arrangements as to compensation does not preclude action on quantum meruit.
    
    3. Evidence showing that plaintiff, suing for personal services rendered decedent, was a married niece of decedent’s wife, who predeceased him by more than 6 years, held insufficient to show a family relationship precluding recovery, in absence of express contract.
    [1] Executors and Administrators, 24 C. J. § 2169; [2] Id., §878; [3] Id., §1123.
    (Decided June 22, 1925.)
    Error: Court of Appeals for Warren county.
    
      Messrs. Eltzroth, Maple & Maple, for plaintiff in error.
    
      Messrs. Shawhan $ Brown, for defendant in error.
   Hamilton, J.

Defendant in error brought an action against the plaintiff in error, administrator of the estate of Robert Gilmour, deceased, to recover for personal services rendered the deceased during his lifetime.

The defense was a general denial, a claim that the “family relationship” existed between the parties, precluding a recovery in the absence of an express contract, and the further claim that all the services rendered were rendered under a special farming contract between plaintiff’s husband and the decedent.

The case was tried to a jury, and a verdict found for the plaintiff. A reversal of the judgment entered on the verdict is sought.

One of the points of error urged is that there is a variance between the proof adduced and the claim alleged in the petition, in that the testimony tended to prove a contract, while the petition declared on quantum meruit. We are not impressed with this proposition, since, under the Code, great liberality is permitted in the pleadings for the purpose of arriving at the ends of justice. Moreover, a promise to pay for services rendered, without definite arrangements as to the compensation therefor does not preclude the bringing of an action on quantum meruit.

The main specification of error stressed is that the evidence discloses that a family relationship existed between the plaintiff and her husband and the decedent. We have read the evidence, and, instead of the proof showing that a family relationship existed, the evidence is clearly to the contrary.

The decedent’s wife died about 6% years prior to the death of decedent, Robert Gilmour. The plaintiff was a niece of the wife of decedent, and had lived with them for several years before her marriage. At the time of the death of the wife of Robert Gilmour, the defendant in error had been living with her husband many years, and had one daughter, 13 years of age. They had lived in their own home, and at the time of the death were living in Springboro, Ohio, many miles from the decedent. They attended the funeral of Gilmour’s wife, and, after the funeral, Gilmour requested the defendant in error to come to his home with her husband and daughter and take care of him, and stated that he would see that she was well paid, or words to that effect; that he wanted her to come and do for him. Acting upon that, the Crosses came to reside at the home of the decedent. Thereafter a cropping arrangement was entered into between the decedent and the husband of the defendant in error, by which he farmed the farm on shares. .

These facts are undisputed, and are sufficient to show that no “family relationship” existed between the parties. All the facts presented are inconsistent with the idea of the “family relationship.”

There is no dispute as to the services rendered by the defendant in error. She did care for the decedent; and the proof is that the services were worth more than the amount claimed. The decedent suffered with various afflictions, and required a great deal of nursing and attention. The only question that has arisen in the minds of this court is that of right to recover for board.

There is some evidence tending to show that the board was furnished under the cropping contract with the husband. There was some evidence tending to show that the furnishing of the board was not a part of that contract. The court charged the jury that they should consider each and every item of the account separately, and that the plaintiff should prove the right to recover on each and every item of the account. The jury returned a verdict of approximately $1,000 less than the amount sued for. The jury must therefore have taken into consideration the question of board, since the value of the services, as disclosed by the evidence, was even greater than the amount claimed.

This was a case peculiarly for a jury, and was fairly submitted. We find no prejudicial error in the record, and the judgment. will be affirmed.

Judgment affirmed.

Buchwalter, P. J., and Cushing, J., concur.  