Schultz's Estate

Sinkler, J.,

The first and second exceptions are based on the failure of the auditing judge to find that a contract existed between decedent and claimant whereby former agreed to make provision in his will for services rendered him by latter, and that the services rendered by claimant were not compensated for by decedent. The third exception relates to the failure of the auditing judge to find that claimant had not been compensated for his services and that he should receive compensation on the basis of a quantum meruit.

The general rule is that a claimant who has failed to establish his claim upon an express contract, may not then proceed upon a quantum meruit. Therefore he should not be permitted to present his claim upon either an express contract or a quantum meruit. In the present case the auditing judge considering all the evidence before him found that an express contract was not proven with the precision required by law; that the presumption of periodic payments has not been overcome; and that the claim is stale and should have been asserted before decedent’s death. These findings of fact will not be disturbed unless manifest error exists. We do not find the existence of such error. Whether the claim be presented upon an express contract or upon a quantum meruit the auditing judge has correctly determined that it has not been proven.

The exceptions are dismissed and the adjudication is confirmed absolutely.