
    Carpenter v. Carpenter.
    
      (Supreme Court, General Term, Third Department.
    
    November 22, 1892.)
    1. Damages—Breach of Contract to Support.
    Plaintifi had lived with and been maintained by defendant for several years under a verbal contract by which, in return for his services, plaintiff was to be maintained during the rest of his life. Held, that on breach of the contract by defendant plaintiff’s measure of damages was not the value of his services over the value of the maintenance furnished for the period he had lived with defendant, but that he could recover the expense of his support, which defendant had failed to furnish according to contract before the commencement of the action, and the prospective expense for such maintenance during the remainder of his life.
    2. Necessity for Exceptions—Power of General Term.
    "Where a cause has been submitted to the jury on an erroneous theory, the general term of the supreme court, on appeal, may order a new trial, though no exception was taken to the charge of the trial court.
    Appeal from circuit court, Saratoga county.
    Action by Timothy Carpenter against George Y. Carpenter to recover damages for breach of a verbal contract under which, in return for his services, defendant was to furnish plaintiff a home for the remainder of his life. On the trial a jury rendered a verdict for plaintiff for $750, and from the judgment entered thereon defendant appeals. Reversed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    S. M. Richards, (T. F. Hamilton, of counsel,) for appellant. H. F. Pendrick, (J. W. Houghton, of counsel,) for respondent.
   Per Curiam.

We think the rule of damages adopted below wrong. Plaintiff, having lived with and been maintained by defendant for about nine years under a verbal contract by which the latter, in consideration of the services to be performed by the former, was to board and maintain him during the remainder of his life, on a subsequent breach of the contract was suffered to recover the value of his services over the value of the maintenance furnished for the whole period he had lived with defendant. During said period the work done by plaintiff was paid for as provided in the contract by his board and maintenance. During two years, or about that period, prior to the commencement of the action, defendant failed to board and maintain plaintiff pursuant to the contract. The rule of damages in such a case, under such a contract, is well settled. Plaintiff was entitled to recover the expense of his support, which defendant had failed to furnish as provided by the contract before the commencement of the action, and the prospective expense for such maintenance during the balance of his life. Shaffer v. Lee, 8 Barb. 412; Schell v. Plumb, 55 N. Y. 592.

We think this one of those instances of the submission of a case to the jury on an erroneous theory, where, although no exception was taken to the charge, a new trial should be granted. Whittaker v. Canal Co., (Sup.) 3 N. Y. Supp. 576. But on the- trial the appellant did object to evidence offered to show the value of respondent’s services at the time he lived with appellant, “as not the proper measure of damages. ” The court overruled the objection, and an exception was taken. We think the court erred in so ruling," for the reasons above stated. We have read carefully respondent’s supplemental brief, but are of opinion that said evidence as to the value of respondent’s services, under the complaint and the theory adopted by the plaintiff and the court on the trial, was incompetent for any purpose. The judgment should be reversed, and a new trial granted, costs to abide the event.  