Kennard v. Whitson — 6 Del. 36

Majority

p. 36

William Kennard v. Thomas Whitson and Nathan Hobson, Executors of Thomas Hobson, deceased.

Headnote

An agreement to board and lodge another implies an engagement to pay the usual and reasonable attentions to the health and comfort of the boarder to be expected under the circumstances, and srich reasonable and customary attentions will furnish no ground for a distinct or additional charge against the boarder.

There is nothing, however, in this relation or agreement to entitle the hoarder to expect or demand of the family boarding him, the usual and often arduous attentions and services of a nurse, in a case of extreme or protracted illness, without paying additionally for such services ; but if such services are rendered by the wife or other member of the family, through a series of years, to an infirm and aged boarder, with the hope and expectation merely of being remembered in his will and rewarded for it, by devise or bequest, after his death, it will furnish no ground of action for such services against his executors.

Assumpsit for board and lodging and services in sickness, of Thomas Hobson, deceased.'

The proof was that the deceased, who was a very aged and'infirm man, and severely afflicted with an offensive disease, was a hoarder and lodger in the family of the plaintiff, who was a tenant of his, at a charge of two dol

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lors per week. His condition was such as frequently to require a great deal of unpleasant nursing night and day, and as he was weak and childish, he seemed unwilling at such times to receive the necessary attentions from any member of the family but the wife of the plaintiff, and was faithfully and laboriously nursed by her through a period of three years. It was also in evidence, that he had repeatedly acknowledged his obligations to her, and declare'1 J—"nn- his last illness that he could never sufficiently r for her great kindness and attention to him, ai .juently said to her during the time he had be 1 g in the family that she should be rewarded 1 to others, at one time, that he intended to leav louse in which they lived, and at another, that a jh he was then having built was intended for he made no provision for her in his will.

Got he plaintiff,

insisted that these services were rewai were the q in ad lodgi red with the hope or anticipation of any ast will and testament of the testator, hut . with a positive intention on the part of the time to charge the deceased for them, ie price stipulated to be paid for hoard and

B\ the defendant,

contended that they were rend such a hope and expectation merely, and with sa of charging for them additionally at the tim< .aintiff and his family well knew, from the age nities of the testator when they received him ler and lodger, that he would necessarily requi: 5 nursing and much attention in his illness; and ng was said in regard to the matter at the tim s price was agreed upon for his board, and no ; ever made for it until after his death, and asl< art to instruct the jury that if such was the cas itiff was not entitled to recover for such" ser

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vices, or anything more than the balance of his account for' board simply.

The Court,

charged the jury: That if the services referred to, in the way of assiduous nursing and attention during the severe and protracted illness of the deceased, were rendered by the wife ¡of the plaintiff with the hope and expectation merely of being remembered and rewarded for them in his will, and without any intention on the part of her husband to make any charge for them at the time, then they were to be regarded as offices of favor and kindness only, and would furnish no ground of action against his estafe; for in such a case, whether there should be any reward or compensation, and what should be the amount of it, were left entirely to'the grati'tude and discretion, the bounty and generosity of the testator, and the plaintiff would be without any legal redress if disappointed in these expectations: This remark, however, would not apply to any balance that might be due for actual board at the time of the death of the testator, according to the .price agreed upon between the plaintiff and the deceased. ¡But an agreement to board and lodge a person, implied, an engagement to pay the usual and reasonable attentions to the comfort and health of the boarder to be expected under the circumstances, and such reasonable and customary attentions would furnish no ground for a distinct or additional charge against the boarder. There was nothing, however, in this relation or agreement which would entitle the boarder to expect or demand of the wife or family of the person boarding him, the usual and often arduous attentions and services of a nurse, in a case of extreme or protracted- illness, without paying additionally for them; and if such services had been performed by the wife of the plaintiff for the deceased with the intention of charging additionally for them, and with the expectation of being paid for them, without reference to the testamentary dispositions of the testator, then the plaintiff would be entitled to recover such addi

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tional compensation for them as would be just and reasonable, according to the nature and amount of the services rendered.

Gordon, for the plaintiff.

Bradford, for the defendant.

Verdict for the plaintiff for $1029.36f.