Soderlund v. Helman

102 N.E. 899, 215 Mass. 542, 1913 Mass. LEXIS 1308

Opinion

Morton, J.

These are two actions to recover damages for the breach of a written contract entered into, as alleged in the declaration, by the defendant and one Hanna Helman, his wife, with the plaintiff, whereby they agreed to furnish the plaintiff with board and food for the rest of her life and to pay her in addition $10 monthly during her life. Hanna Helman, the wife, died before the action was brought. There was a verdict for the plaintiff in each case, and the cases are here on exceptions by the defendant to the admission of evidence and to the refusal of the presiding judge

Footnotes

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* to give certain rulings requested. The cases were tried and have been argued together.

The contract was in Swedish and the parties differed as to the translation and meaning of the language used. According to the translation contended for by the plaintiff the defendant and his wife were to furnish the plaintiff with food for the remainder of her life according to her need and also to pay her $10 monthly. According to the construction contended for by the defendant the plaintiff was to receive from him and his wife board for the remainder of her life on demand according to her need, and this obligation was to be discharged by the payment of $10 monthly to her. It must be assumed that the jury found that the translation contended for by the plaintiff was the correct translation.

The plaintiff was permitted to testify subject to the defendant’s exceptions that she had been in need of food, and that she left the defendant’s house because she was afraid of him. The evidence was clearly competent as tending to show that the defendant had not furnished the plaintiff with food as he agreed and that the plaintiff was justified in leaving his house and in not going there for food. Evidence which was also introduced, subject to the defendant’s exception, of the fair market price per week of a woman’s board, was competent on tjhe question of damages as tending to show what was the fair value of the food which the defendant failed to furnish. The testimony of the deputy sheriff of the service by him upon the defendant of a demand by the plaintiff’s attorney for the payment of all moneys due the plaintiff under the contract did the defendant no harm, even if as matter of law no demand was necessary.

J. G. Annala, for the defendant. P. F. Ward, for the plaintiff.

The first ruling requested, that on all the evidence the plaintiff was not entitled to recover, was rightly refused. There plainly was evidence warranting verdicts for the plaintiff. The second request that the plaintiff could not recover for the food was also rightly refused. The defendant was bound to furnish the plaintiff food according to her need, and if he did not he was liable to her for the fair value of the food not furnished. So much of the third request as was to the effect, that in order to entitle the plaintiff to recover for food she should have made demand therefor on the defendant, was given by the presiding judge with the qualification that the plaintiff would be excused from making such demand if under a reasonable apprehension of bodily injury in case she went to the defendant to make a demand for food. This was correct. There was evidence tending to show that she was under such apprehension. The rest of the ruling asked for to the effect that the demand must be accompanied with appropriate specifications of what food was needed, and unless the jury were satisfied that a demand with such specifications was made the plaintiff could not recover, was rightly refused. While the plaintiff, unless excused by the defendant’s conduct, was bound to make a demand for food if in need thereof before the defendant could be said to be in default for failure to furnish it, she was not bound to specify what food she needed. It would have been enough to demand that she be supplied with food. Cases like Gushee v. Eddy, 11 Gray, 502, relied on by the defendant, are not applicable.

The fourth and last ruling requested was that to enable the plaintiff to recover she must have made a demand on the defendant. This was properly denied. According to evidence introduced by the plaintiff the defendant agreed absolutely and unconditionally to pay the plaintiff $10 monthly. That being so, no demand was necessary before bringing suit although, as already observed, one seems to have been made. Andrews v. Frye, 104 Mass. 234. 9 Am. & Eng. Encyc. of Law, (2d ed.) 199.

Exceptions overruled.

The cases were submitted on briefs.

Hall, J. ■