
    Harding, Appellee, v. Talbott, Exr., Appellant.
    (Decided December 9, 1936.)
    
      Mr. A. B. Mabee, for appellee.
    
      Mr. Dean C. Talbott, for appellant.
   Lemert, P. J.

Christina Harding, as plaintiff, filed an amended petition against the defendant, Dean C. Talbott, executor, claiming that the estate of the decedent, Amy Kreps, was indebted to her in the sum of $5460, with interest from December 15, 1934, for care of decedent’s room and bed, washing her bed and clothing, for nursing and caring for decedent generally during poor health, and for lodging, such sum being the reasonable value of the services. The petition further stated, “and all of which services were performed by plaintiff at the instance and request of decedent and for which she promised to pay plaintiff as much as- the same were reasonably worth.”

To this petition the defendant, executor, filed an answer, and for a first defense entered a general denial; and for a second defense alleged an agreement whereby plaintiff and her husband agreed to furnish board, lodging, washing, care and nursing for the sum of $15 per month while decedent lived in the home of plaintiff, that decedent accepted the agreement, and the sum of $15 per month was paid in full for those services.

To this answer a reply was filed admitting the payment of $15 per month, alleging the same was for decedent’s board only, and setting forth that the plaintiff denied that any receipts given to decedent were ever intended to be for the payment of the services set forth in the petition. A trial was had and the cause submitted to a jury which returned a verdict against the appellant executor in the sum of $2758.76, with interest at six per cent from April 13,1936, and for costs. A motion for a new trial, filed by appellant, was overruled and judgment entered on the verdict.

Ten grounds of error were recited in the motion for a new trial. An examination of the record in this case discloses that the decedent, Amy Kreps, for some time after the death of her husband, lived at her own home and later boarded at the home of Mrs. Ada Briggle; that some time in the year 1930 plaintiff came to the home of Mrs. Briggle and talked to decedent in the presence of Mrs. Briggle. Plaintiff asked decedent to come and live at her home and told her she would not charge her a cent for it, because the decedent had been so good to plaintiff. The evidence discloses that Mrs. Kreps went to the home of plaintiff and her husband and lived there for several years, but does not disclose the exact period of time. The evidence does disclose that for the last year or so of her life decedent became somewhat of a charge and died at the home of plaintiff and her husband. The evidence does not show that plaintiff, or anyone for her, ever kept an account, nor was any account of any charge for any services rendered at any time introduced in evidence. A careful examination shows that the amended petition seeks a judgment for services which were rendered decedent by plaintiff, at the instance and request of decedent, and for which she, the decedent, promised to pay plaintiff as much as the same were reasonably worth. This is the sole and only allegation in the petition as to the contract between the parties. Therefore, this case in the court below was based upon a straightforward allegation or averment of an implied contract. There was some evidence in the record that decedent was taken into plaintiff’s family as a member thereof, and the court below refused to charge thereon, and also refused to charge that the degree of proof required clear and convincing evidence instead of a preponderance of evidence in case she became a member of the family. The attention of the court below was called to this at the time of making the charge. The court overruled the motion.

The court in its charge to the jury charged on both an express and implied contract and then gave the following charge: “You will take this case, look into the evidence carefully, endeavor to arrive at a true understanding between the parties and return a fair and impartial verdict.”

We are of the opinion that this was reversible error. It was not the duty of the jury to carefully endeavor to arrive at a true understanding between the parties; that would mean that it was the duty of the jury to make a contract between the parties. It is the duty of the jury to determine whether there had been an agreement or contract made between the parties. Agreements and contracts of parties are one thing, but under no circumstances can a jury make a contract for the parties. It is very evident, upon reading the charge of the court below, that no distinction was made as to the proof required as between express and implied contracts.

This court in the case of Anderson v. Houpt, 43 Ohio App., 538, 184 N. E., 29, held:

“No contract to pay for services as between parties occupying family relationship will be implied even though performer is stranger and not blood relative.”
“Meeting of minds upon its terms is necessary to making of contract, whether express or implied.” See also 42 Ohio Jurisprudence, 497, Section 14.

We note from the testimony of Loren Harding, husband of the appellee, that these questions were asked:

“Q. Did she pay $15 a month? A. She did.
“Q. Up to the date of her death? A. She paid up to the time of her death; she paid us $15 for the board, for her board only, but there was an understanding before she died, we were to be paid extra.
“Mr. Olds. Finish your answer.
“Witness. That was the understanding between us.
“Mr. Talbott. I object to that statement and ask the jury be instructed not to consider it.
“Court. Overruled.”

We note the statement of the witness: “But there was an understanding before she died we were to be paid extra.” This is a conclusion that there was an agreement and not a statement of fact; a mere conclusion of the witness.

The court below was asked to take the statement from the jury and that the jury be instructed not to consider it. The court overruled the same and exceptions were saved. This, we believe, was reversible error. The witness upon a proper answer to inquiry could have stated what was said so that the jury could determine whether there was an agreement or understanding between decedent and plaintiff; but the court allowed the witness to state that there was an understanding, that is, a contract between decedent and appellee. It was for the jury to determine from facts in evidence whether there was an understanding or agreement between decedent and appellee that appellee was to be paid extra; but there were no facts or statements in evidence, only the conclusion of the witness who was the husband of appellee.

Under the facts of this case as disclosed in the record, the motion of appellant at the close of appellee’s testimony for a directed verdict should have been sustained. This is also true of the renewal of the motion at the close of all the evidence.

We note further in the charge the court said: “The plaintiff cannot recover in this case unless she proves by a preponderance of the evidence that there was a contract on her part to perform the services as set forth in the petition for compensation, and upon her part to accept the services and pay for them. If the plaintiff fails to prove to you by a preponderance of the evidence that such an agreement was entered into between the plaintiff and defendant’s decedent whereby she was to perform the services and she was to pay her for such services, then the defendant is entitled to your verdict. ’ ’

We believe this to be reversible error, and that the rule is that the proof to be made in such case must be by clear and convincing evidence, and not merely by a preponderance thereof. 42 Ohio Jurisprudence, 498.

There are other errors complained of in this case, but we do not believe that they are of sufficient importance for consideration herein.

Upon the grounds herein stated and for the reasons herein given, we are of the opinion that error has intervened in this case and that the finding and judgment of the court below should be and the same hereby is reversed and the canse remanded to the Court of Common Pleas for further proceedings according to law.

Judgment reversed and cause remanded.

Montgomery and Sherick, JJ., concur.  