Appellant, as executrix of the estate of George Groshoff, deceased, sued St. Gertrude's Convent, a corporation, respondent, to recover compensation for alleged constructive services. It was alleged in effect that the Ven. Sisters, O. S. B., hired deceased to superintend the erection of certain buildings at an agreed price; that respondent took over and became the owner of the property and succeeded to the rights and liabilities of the Ven. Sisters, O. S. B.; that after respondent became the owner the deceased was wrongfully discharged; that respondent completed the construction of the buildings; and that the deceased was ready and willing at all times to perform. A general demurrer to the complaint was sustained and upon refusal to plead further, judgment was entered in favor of respondent.
The contract of employment set forth in the complaint was between deceased and Ven. Sisters, O. S. B., signed "Mother Superior, Parties of the First Part." There is no allegation in the complaint relative to the capacity of Ven. Sisters, O. S. B., or that respondent had any connection with such organization, or that the personnel of Ven. Sisters, O. S. B., was the same as respondent's membership, or that there was any fraud in the change of organization.
Inability of the master to perform his contracts such as would arise from a closing out or change of business terminates such a contract as was entered into between deceased and Ven. Sisters, O. S. B. (White v. Lumire North American Co., 79 Vt. 206,64 A. 1121, 6 L.R.A., N.S., 80, note; 39 C. J. 76.) Appellant does not seek recovery from the original employer but from the successor. Therefore, in order to state a cause of action arising out of the relation of employer and employee appellant must show a contract, express or implied, with respondent. (Ramon v. Interstate Utilities Co., 31 Idaho 117,170 P. 88; McDowell v. Duer, 78 Ind. App. 440, 133 N.E. 839;Nissen Transfer Storage v. Miller, 72 Ind. App. 261,125 N.E. 652; C. C. Slaughter Co. v. Pastrana (Tex.Civ.App.),217 S.W. 749.) No express contract was alleged as between *Page 557 decedent and respondent, appellant apparently resting her claim on an implied promise of respondent to assume the rights, duties and obligations of Ven. Sisters, O. S. B. The only allegation with respect to such assumption was merely a legal conclusion. (Roharer v. Middlesboro Town Lands Co., 103 Ky. 146,44 S.W. 448; Cairo Vincennes R. R. Co. v. Dodge, 72 Ill. 253;Kreidler v. Hyde, 130 Ill. App. 505; Automatic S. Mach.Co. v. Twisted W. S. Co., 159 A.D. 656,144 N.Y. Supp. 1037; Fireman's Fund Ins. Co. v. American M. M. Ins. Co.,211 A.D. 93, 206 N.Y. Supp. 683; Stodghill v. Crafton,209 Ky. 774, 273 S.W. 466; Wilson v. Sufton, 25 Pa. 29; Hopkins v.Erskine, 118 Me. 276, 107 A. 829; Wallace B. T. Co. v.First National Bank, 40 Idaho 712, 237 P. 284.) The truth of such conclusion of law was not admitted by respondent's demurrer. (Burkhart v. Reed, 2 Ida. (Hasb.), 503, 566, 22 P. 1; affirmed, Clough v. Curtis, 134 U.S. 361, 10 Sup. Ct. 573,33 L. ed. 945; Caldwell v. Village of Mt. Home, 29 Idaho 13,156 P. 909; Hopkins v. Erskine, supra.) No facts having been pleaded as to the assumption of liability by the respondent, no cause of action against respondent was alleged. (Hurt v.Brandt, 37 Idaho 186, 192, 215 P. 842.)
This determination of the above point renders it unnecessary to consider the other points raised. The action of the trial court in sustaining the demurrer was therefore correct and the judgment is sustained. Costs awarded to respondent.
Wm. E. Lee, C.J., and Budge and T. Bailey Lee, JJ., concur. *Page 558