(dissenting):
It is the opinion of the other members of the court that the claimant did not fulfill on her part the contract which was made in her behalf, and that instead of staying with the decedent she left him and, therefore, all services rendered after that date were under a new implied contract and to recover for which she must rely upon a quantum meruit for a period of six years and no longer. I cannot agree with this conclusion. The testimony' shows that after the claimant was married and after moving from the farm she still resided in the' neighborhood and was subject to call at any time by the decedent for the rendition of any services that he might require. The evidence also shows" that she rendered such services and that many of them were at the special request of the decedent, who sent for her to come to his home, where the services in question were rendered. The implication must be that such request was based upon the contract that the decedent made with claimant’s father; that decedent did not regard such contract as canceled or that the claimant had abandoned any effort to perform on her part. Furthermore, the testimony shows that on two occasions after the claimant had left the decedent’s home the latter had made statements that he had fixed everything for Mabel and that he had made his will in her favor and wanted her to have all her pay.
In view of the fact that these admissions were made after the claimant left decedent’s home and the further fact that he called upon her for the rendition of services after such date indicates to me that the decedent did not regard the original contract as canceled, and if it had not been canceled the claimant is entitled to recover the full amount awarded to her by the surrogate. I favor an affirmance.-
Decree modified by reducing the amount of the damages to $240, ■with interést, and as so modified affirmed, without costs.