The defendant excepts to the refusal of the judge to give a specified instruction. He insists that, “ from the testimony of the plaintiff (no other testimony being stated, or relied upon), the jury might properly have found, that the services were rendered neither as a gratuity or gift, nor with any expectation of pay, other than such as he expected by the will, but that it was understood between the parties that the plaintiff was to receive as much by the will, as his services were worth.”
In other words, that there was in fact a contract of this nature, binding on the parties, for the breach of which, this action could be sustained, if the devise or legacy to the plaintiff did not equal in value the services rendered.
With this view, the defendant requested an instruction that, “if the plaintiff rendered services for the testator, with an understanding that compensation was to be made by will, and the plaintiff received by the will property of as great, or greater value, than the services rendered, it will be presumed to be in satisfaction of such services.”
The judge did not give this-instruction.
As an abstract proposition, it may, perhaps, not be objectionable, But we cannot find in the evidence of the plaintiff relied upon, proof of any such distinct contract, nor any thing from which a jury could legitimately have inferred its existence. The most that it tends to prove for the defendant is, that the work was done without any precise contract for remuneration, or expectation of pay, but with the expectation, or hope, or indefinite understanding, that the plaintiff would have a legacy or devise in the testator’s will, leaving it to his own determination what, and how much, to give.
The judge very distinctly stated to the jury, that if the services were thus rendered, “ plaintiff not expecting or intending to- claim pay for them, although he may have been expecting favors in return, he cannot recover.”
This was presenting the evidence in the most favorable light for the defendant. If the jury could not find the existence of even this loose understanding, there would seem to have been but little *572reason to suppose that they could have found a specific and distinct contract between the parties, that one should work and the other pay what would be due under a quantum meruit count, by a legacy or devise of sufficient value to cancel the debt.
The value of the property devised was immaterial, unless it was established that it was to be regarded as payment, under such a count.
The other rulings seem unobjectionable.
Exceptions overruled.
Judgment on the verdict.
Appleton, C. J.; Walton, Daneorth, and Tapley, JJ., concurred. Barrows, J., did not concur.