In re SPENGER ESTATE.
Docket No. 44, Calendar No. 46,275.Supreme Court of Michigan.
Decided December 29, 1954.Willard I. Bowerman, Jr., for plaintiff.
Benjamin F. Watson, for defendant.
DETHMERS, J.
Plaintiff filed a claim in probate court against decedent's estate, on the theory of implied contract, for the value of services rendered. An order entered disallowing the claim, which, on appeal to the circuit court, was affirmed and from judgment therefor defendant plaintiff appeals to this Court.
Was the finding of the circuit court that plaintiff had failed to establish an implied contract contrary to the clear preponderance of the evidence? Decedent *493 was a widow. She and plaintiff were not related. He moved into her home in 1946 and remained there until after her death in 1951, paying room rent. During that period, as stated in plaintiff's brief, "he performed many varied services for her. These services included house-cleaning, painting, redecorating, laundry, transporting Mrs. Spenger to various places, services similar to those performed by a practical nurse, caring for her cemetery lot and shopping for her." In 1948 she made a will which named him sole beneficiary. He knew this. Shortly before her death she executed a codicil, the effect of which was to leave plaintiff nothing. A witness testified that decedent told her that she was going to will her home to plaintiff because he had been so good to her. There is no other testimony to show that plaintiff expected or anticipated payment for his services when they were rendered or that decedent then expected to pay him therefor. In Pierson v. Sanborn, 282 Mich. 411, this Court said (p 415):
"A contract implied in fact arises when services are performed by one who at the time expects compensation from another who expects at the time to pay therefor."
Such facts were not shown here. In the Pierson Case, in denying plaintiffs' claim for the value of services on implied contract, this Court further said (p 418), on the authority of Estate of Miller, 136 Pa 239 (20 A 796):
"That when one renders personal services to another merely upon the expectation of a legacy promised without a contract obligation, the promisee takes his chances on receiving the legacy, and, if his expectations are disappointed, he can recover nothing."
Hence, plaintiff's knowledge of the provisions of decedent's will benefiting him and even statements by decedent to a third person evidencing a testamentary *494 intent to leave the home to plaintiff because he had been so good to her are insufficient to serve as the basis for an implied contract. The test is whether payment was understood and intended, Spence v. Sturgis Steel Go-Cart Co., 217 Mich. 147; whether it was naturally anticipated, Miller v. Stevens, 224 Mich. 626. An agreement to pay cannot be implied from the mere fact that services were rendered. Godfrey v. White, 43 Mich. 171; Notley v. First State Bank, 154 Mich. 676.
"No one is bound to pay for volunteered services rendered under circumstances which do not fairly indicate an expectation of reward." Coe v. Wager, 42 Mich. 49, 51.
Where the testimony fails, as here, to show that the defendant expected to pay and that the plaintiff expected to charge for the services at the time they were rendered no implied contract to pay arises. Covel v. Turner, 74 Mich. 408. The finding of the trial court was not against the clear preponderance of the evidence.
Affirmed, with costs to defendant.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.