Marbury, C. J.,
delivered the opinion of the Court.
This is a suit at law by a plaintiff against the executrix of plaintiff’s sister, for services rendered and for money advanced the decedent during her lifetime. The executrix and her son, unrelated to the decedent, were the sole beneficiaries under her will. A caveat was filed to the will by the appellant in the instant case, but after trial, the will was upheld and the rulings of the trial court were sustained on appeal here. Grant v. Curtin, 194 Md. 363, 71 A. 2d 304. The present case is an effort on the part of the caveatrix to establish the fact that she came to live with her sister as a result of a promise by the latter to leave her a house, that she did live with her sister and took care of her until the time of her death, and expended large sums of money for her care and maintenance, but the sister, instead of leaving her the house, which was her only estate at the time of her death, left it to others.
The declaration contains three common counts — for work done and materials provided, for money lent, and for money paid, and then contains two other counts based upon the specific contract. These counts are as follows:
“FOUR: And for that in October, 1941, the Defendant’s decedent, just after her husband’s death, proposed or promised to the Plaintiff that if she would give up her job in Philadelphia and come to live with her to nurse and care for her, and help her in running and keeping her home and otherwise assist her in her remaining years, that she would compensate her by leaving all her property to her at her death ; [366] that she, the Plaintiff, believing and wholly relying on her said sister’s promise, accepted the proposal or promise and returned to Philadelphia, Pennsylvania, where she had been employed for nine or ten years with a well-to-do banker, in his home, at a good salary of $75.00 per month, with private room, and board, and after due notice to her employer, resigned her position with him, moving all her belongings to the home of her sister, the Defendant’s decedent, 204 King George Street, Annapolis, Maryland ; that she there remained, nursing her more aged sister in her illness, feebleness, and declining years, and keeping or running her home in all respects, at her request, until her death, August 1,1948, thus fully performing the agreement and obligations thus incurred on her part; that, immediately after her said sister’s death, it was made known to her for the first time, that the aforesaid promise and representations by her said sister were false, and that her said sister had purposely deceived her, in that she secretly executed a will on November 5, 1943, in which she fraudulently devised and bequeathed all her property unto the said May H. Curtin and her son, Captain Neal Roland Curtin, and permitted said will to remain unrevoked, while at the same time her said sister continued until her death to accept from the Plaintiff full performance of said services as herein alleged; that Defendant’s decedent, her sister, paid the Plaintiff absolutely nothing for any of said services and sacrifices made by her in complete reliance upon her sister’s promise as aforesaid.
And the Plaintiff claims $4,980.00 damages.
FIVE: And for that the Defendant’s decedent, Mary Grant Griffin, immediately prior to August 16,1943, requested the Plaintiff to bring down from Philadelphia her savings bank de[367] posits, to assist her in maintaining and keeping her home property, her said sister at the same time expressly repeating and reaffirming her proposal or promise that she was leaving all her property to the Plaintiff; that still relying upon the good faith of her sister’s promise, she did bring down from Philadelphia her savings, amounting to $7,700.00, all of which, with $81.37 interest, or $7,781.37 in all, was spent from month to month in and on the home of Defendant’s decedent, her sister, at her request, except a balance of $389.29 remaining August 2nd, 1948, after funeral expenses of $430.75 paid by Plaintiff, making the total amount spent from Plaintiff’s account $7,392.08, of which not over $600.00 was spent on herself, making the net claim under this Count $6,792.08; that immediately after her said sister’s death, it was made known to her, for the first time, that all the aforesaid representations, or promises, made to her by her said sister were false, in that her said sister breached her promise by clandestinely leaving a will dated November 5, 1943, in which she devised and bequeathed all her property unto the said May H. Curtin and her son, Captain Neale Roland Curtin, knowledge of which will was deliberately kept from the Plaintiff until after her said sister’s death; that no part of said money paid for and on account of her said sister, as aforesaid, has been repaid, thus leaving the Plaintiff homeless and peniless.
And Plaintiff claims $6,792.08 damages, with interest. Total claim being $11,772.08, with interest.”
At the conclusion of the testimony, the trial court directed a verdict of $430.70, representing the funeral bill, but took from the jury the consideration of all other questions. From the judgment on this verdict, the plaintiff appeals.
[368] The questions before us relate to the sufficiency of the evidence to permit the jury to pass upon the common counts,' and to give a verdict based upon a quantum meruit.' :The evidence relating to the alleged agreement by the decedent to leave the plaintiff her property shows that :it was merely oral, and, therefore, it is within the prohibitions of the Statute of Frauds. Semmes v. Worthington, 38 Md. 298, 299. Mundorff v. Kilbourn, 4 Md. 459. ..The plaintiff cannot, therefore, recover under the special counts, although the evidence with respect to these counts is admissible to show the contract, as evidence of a mutual expectation to give and receive respectively, compensation, to overcome the presumption that services to one member of a family by another are gratuitous.
The general rule is that if a contract has been fully performed by the plaintiff (which is'the claim here), them a recovery maybe had on the common counts, if recovery is barred on the special contract. Thus, in Ellicott v. Peterson, 4 Md. 476, 491, the court said in a somewhat similar case: “Where there is a contract for the performance of services, or for the sale and delivery of goods which is within the statute, if the services be rendered or the goods delivered and be accepted, the party doing the work or delivering the goods may recover on a quantum meruit, and he may give in evidence the agreement under which the labor was performed or the goods delivered as a part of the res gestae. The law will not allow a man to accept a delivery of goods without making him' liable to pay for them.” And, in Baker v. Lauterbach, 68 Md. 64, 70, 11 A. 703, 704: “.It must be observed that although contracts within the Statute of Frauds are void unless they are in writing, yet the voluntary performance of them is in no respect unlawful. If services be rendered in pursuance of a contract of this kind by one party, and be ■accepted by. the other, they must be compensated.” In Hamilton v. Thirston, 93 Md. 213, 48 A. 709, a suit was brought by a nephew to recover a child’s portion of [369] his uncle’s estate, consisting of real and personal property, under an agreement by which the nephew was to perform certain services for the uncle during his lifetime, which services had been fully performed. There was no count in the declaration on a quantum meruit, and the court said that as the oral contract was within the fourth section of the Statute of Frauds, it could not be made the foundation of an action at law. Part performance would not take it out of the statute because the doctrine of part performance was peculiar to chancery, but the court further said: “Although the appellee is not entitled to maintain the present action upon the alleged contract, he can recover upon a quantum meruit the value of the services rendered by him to his uncle, for from services of this kind, even when rendered in pursuance of a contract within the statute by one party and accepted by the other, a right to compensation arises.” Leave was given to remand the case to permit the pleadings to be amended so that the plaintiff could declare in assumpsit for the value of his services. This was done, but when the case reached this court for the second time, it was held that the action on the quantum meruit must be considered as begun when the amendded declaration was filed, that this date was too late, and the claim was barred under the Statute of Limitations.
It is suggested that the first case of Hamilton v. Thirston has been overruled by later cases, notably by Bright v. Ganas, 171 Md. 493, 189 A. 427, 109 A. L. R. 467. We cannot agree that that or any other case has overruled Hamilton v. Thirston. In Bright v. Ganas, supra, this court had before it a case where a contract was made by a chauffeur to pay him $20,000 if he continued to serve his employer during his lifetime. The servant himself broke the contract by his conduct by making improper advances to his employer’s wife. He sued both on the contract and on a quantum meruit. The court related what was done in Hamilton v. Thirston, supra, and then said: “If the plaintiff established by evidence facts sufficient to show a contract to bequeath him a specific sum in [370] consideration of his serving the decedent to the end of his days, unless sooner terminated by the act of either, then the plaintiff would be entitled to recover under the first count.” The plaintiff, however, was not allowed to recover under a quantum meruit because he had shown an express contract which he had broken. Bright v. Ganas did not overrule Hamilton v. Thirston, but only applied an elementary rule of the law of contracts, to which there are so many exceptions in practice that the rule itself is in danger of being overlooked. “Where * * * the plaintiff has been guilty of fraud, or after performing a part has wilfully abandoned the work without legal excuse, and against the defendant’s consent, leaving it unfinished, he can not recover in any form of action.” Poe on Pleading, Sec. 101. This rule is not impaired, though it may be overlooked, because of the multitude of cases in which recovery on a quantum meruit has been permitted when the plaintiff has not wilfully defaulted but in good faith has fallen short of strict performance and the defendant has accepted, and received benefit from, the work.
Breitinger v. Heisler, 155 Md. 157, 141 A. 538, was somewhat similar to Bright v. Ganas, but not to Hamilton v. Thirston. In that case the court said: “In the instant case the appellee does not undertake to recover on the quantum meruit for the ‘reasonable worth’ of his services, but sets up a contract definite as to the amount of money involved, and undertakes to prove that contract without any variation, on the basis of $50 per month, regardless of the value of the services. If he stands on the contract, of course, it is well settled that he has no right to recover on the quantum meruit. There is either a contract at $50 a month or there is no contract at all upon which there can be a basis for recovery.” The question was not one of performance or breach, but whether there was any contract at all. The language quoted was part of the court’s reasoning in finding that the plaintiff had failed to prove his contract. The court simply did not believe his testi[371] mony. Neither Bright v. Ganas nor Breitinger v. Heisler involved any question as to the Statute of Frauds. Neither in Hamilton v. Thirston nor in the instant case was any question of wilful breach of contract presented. In both, the contract, unenforceable because of the Statute of Frauds, is admitted in evidence only to rebut the presumption that the services were gratuitous and to show that plaintiff expected to recover, and the decedent to pay, compensation for them.
It is apparent that if the plaintiff in the instant case has produced evidence to prove a contract, which is not enforceable under the Statute of Frauds, she can nevertheless recover under the common counts on a quantum meruit if her part of the contract was fully performed. She faces, however, another obstacle in doing this which is that there is a presumption that where services are rendered by one member of a family to another, they are supposed to be gratuitous, although this presumption may be rebutted by clear and unequivocable evidence. Krug v. Mills, 159 Md. 670, 152 A. 493. With this in mind, we examine the testimony to see if it is sufficient to take the case to the jury.
Disinterested witnesses testified that the decedent had told them that she had asked Kate (the plaintiff) to come down to live with her and take care of her, because sb.e was unable to do anything for herself, and that she had promised to leave Kate all of her property. Thus, a Mrs. Holden, who was a friend and lived near her, said: “Mary said she had no money to pay Kate with, but that when she died she would leave her the property. She said that that was what she told Kate.” Mrs. Norman, a teacher at the Glen Burnie Senior High School, who lived near Mary and had known her for twenty years, said that at a time when Kate was standing there, the deceased said: “Kate and I have a perfect understanding; Kate knows that this is her home as long as she lives.” Irene Jones, who did general housework for a living and worked for [372] the deceased, said the latter told her: “Kate is very good to me; I have no money to pay her, but I promised her the property when I die.” Louis Senisi, who did odd jobs for the deceased, said she told him: “Mr. Senisi, I won’t be here much longer; after I am gone I wish you take care of Kate’s house like it been taken care of for me all these years.” Mamie Dutton, who> had worked for Mrs. Holden for about twenty or twenty-five years, said that after Mary’s husband died, “She-told us that she was going to have her sister to come down with her to take care of her, because she was feeling she needed her, she could not get along, because she was getting a little too old, she was going to leave her her property.” That was before Kate came down, and she made the statement again after Kate came down, to Mrs. Holden and the witness, who were sitting in the kitchen talking. Harley T. Williams, who worked at the Naval Academy and had had a room in the house where the decedent and Kate lived, said that Mary told him she asked Kate to come down after her husband' died, and she said she “did not have anything but the house that belonged to she and Kate.” The evidence of Mrs. Holden, Mamie Dutton and Irene Jones supports', the plaintiff’s contention that a contract was entered into.
The facts about these sisters are that they were both born in Ireland. Mary, the deceased, was about fifteen years older than Kate and was about ninety years old when she died. Mary came to America when she was a young woman and worked as a domestic in and around Philadelphia and Annapolis. She subsequently married, and the house in which she lived in Annapolis came to her from her husband. He died in 1941. Kate came to America after Mary, and worked as a domestic in Philadelphia. She had worked for a number of years for two families in Philadelphia. She came to live with Mary about January 1, 1942, and lived with her until her death on August 1, 1948. Under these circumstances, we think there was sufficient -evidence to' go to the jury that the services rendered were not volu[373] tary, such as a sister would ordinarily render to one in the family, but were the result of a definite agreement.
The trial court held there was no definite proof of the value of appellant’s services. That may be true in part, but there was evidence that what Kate did was to look after the house, scrub the floors, fire the furnace, do the cooking, do the buying, and perform such services as a housekeeper and a cook would perform. There is testimony in the record that for part of such services, that is, those rendered by a three-quarter-time maid, with no Sunday work, a fair and reasonable wage would be $12.00 a week. We think that is sufficient testimony of value to take' the case to the jury on this question.
On the counts involving the payment of money, the evidence shows that the plaintiff brought down from Philadelphia her savings, amounting to $7,781.37. There was paid out of this amount $6,792.08 during the period from August, 1943, to August, 1948. It is claimed that Kate was asked how much she spent for clothing and some eye sickness, and she said it amounted to about $600.00. It is contended that all the balance was spent in taking care of Mary, but there is no definite evidence as to how this was spent, or what was done with it. Mary had $3,497.77 in her account when her husband died. This was reduced to $1,726.10 by July, T943, when Kate got her money from Philadelphia. For the next five years, Mary withdrew from her account $1,441.23, which figures about $20.18 a month. Kate, during the same five-year period, withdrew from her account $6,792.08, or $113.20 a month. There was also testimony that rooms were rented during this period, but how much this amounted to is not shown. Of course, whatever was spent during this period for food, heat, and other incidentals of running a house, was beneficial both to Mary and to Kate, and, without some definite figure, or some way of calculating more definite than that already shown, a jury could not, without speculation, determine how much of Kate’s money was spent for Mary’s benefit.
[374] If it may be implied that the sisters were to share their joint expenses equally, there is no evidence (though there may be surmise or suspicion) that Kate paid more than her share. Kate’s testimony that she spent about $200.00 for clothes and $400.00 for expense of eye trouble would not even be admissible under the evidence act, to show that all the rest was spent for joint expense or for Mary. Bowman v. Little, 101 Md. 273, 61 A. 223. It cannot be assumed or inferred, merely because more of Kate’s money was spent than of Mary’s, that more was spent for joint benefit and not more for Kate. That being the case, the evidence is not sufficient to justify a verdict for money lent or money paid, except as to the funeral expenses, about which there seems to be no contest.
Under these circumstances, we think the judgment should be reversed and the case remanded so that a new trial may be had.
Judgment reversed with costs, and case remanded for a new trial.