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(Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.) tract, no good reason is apparent all law. Almost the whole procedwhy the plaintiff might not elect to ure of human life implies—or, rathsue for damages for its breach." er, is the continual fulfilment of

He then proceeded to show that contracts. it was an action for breach of con- "Further, in all the relations of tract and triable by jury, and the social life, its good order and prosjudgment of the lower court was re- perity depend upon the due fulfilversed, with directions to enter ment of the contracts which bind all judgment on the verdict. The ver- to all. Sometimes these contracts dict so sustained was for all the are deliberately expressed with all balance of the estate of McQuade the precision of law, and are armed after his debts were paid. Now it with all its sanctions. More freshould be noted that this was not an quently, they are, though still exaction on quantum meruit. It was pressed, simpler in form and more an action for breach of contract for general in language, and leave more failure to bequeath property by will, to the intelligence, the justice, and and the damages were assessed un- honesty of the parties. der the rule laid down in 8 R. C. L., "If all contracts, express or imp. 452, heretofore cited.

plied, were carried into full effect, The distinction between an action the law would have no office but that on quantum meruit for services of instructor or adviser. It is berendered, and the case at bar for cause they are not all carried into breach of contract in the settlement effect, and it is that they may be of a claim for personal injuries, is carried into effect, that the law exerwell stated in Leu's Estate, 172 Wis. cises a compulsory power. 535, 179 N. W. 798, as follows: “Hence is the necessity of law; "These cases firmly establish the and the well-being of society deprinciple that the cause of action pends upon, and may be measured accrues when the services are ren- by, the degree in which the law condered, as in other cases of implied strues, and interprets all contracts contract, and the person rendering wisely, eliminates from them whatsuch services may maintain an ac- ever is of fraud or error, or othertion upon them at any time."

wise wrongful, and carries them out In the instant case there can be into their full and proper effect and no doubt but the contract in express

execution." terms postponed the claim under an So the courts have upheld conexpress contract until the death of tracts with great strictness, accordthe uncle. Here, there is either a ing to the intent of the parties. claim under an express contract or Wisconsin M. & F. Ins. Co. Bank there is no claim at all. There is no v. Wilkin, 95 Wis. 111, 60 Am. St. implied contract. Compensation is Rep. 86, 69 N. W. 354. And in a a statutory obligation, and it is not recent case Mr. Justice Owen said: based on implied contract. The "The [trial] court found that there whole basis of business has been was also an understanding that the built upon the law of contracts. In testator and his wife were to live Parsons on Contracts, 9th ed. vol. 1, with the lessees during the period of pp. 3-5, it is stated: “The law of the lease. Shortly after the testacontracts, in its widest extent, may tor's death the widow removed from be regarded as including nearly all the farm and lived with another the law which regulates the rela- daughter. Because the lessees were tions of human life. Indeed, it may thus relieved of the support of the be looked upon as the basis of hu- testator and his wife, the court man society. All social life pre- charged the executrix with an extra sumes it, and rests upon it; for out cash rental of $30 per year, for the of contracts, express or implied, de- apparent reason that their support clared or understood, grow all was worth at least $30 per annum. rights, all duties, all obligations, and This was error. It amounted to a rewriting of the lease and the mak stitute for the consideration of the ing of a new contract.” Gehring's parties expressly stated in the conWill, 179 Wis. 589, 192 N. W. 36. tract an amount such as the plain

But here it is this court that re- tiff could have recovered under the writes the contract of the parties, Compensation Act, on the theory of and substitutes an obligation of its an action on quantum meruit, is own choice, which the parties did wholly without authority. There is not put in their contract and which no such thing as quantum meruit they never contemplated, for the here. The action was brought for true obligation entered into by the breach of contract. Where there is parties. The sanctity of contracts an express contract, one may not may no longer be held if this court abandon it and sue on quantum can rewrite them according to its meruit. And here plaintiff seeks notions of what the parties should no such relief. On the theory of have done, instead of what they quantum meruit, how are the damactually did.

ages to be ascertained? The court In case of a breach of contract to suggests a novel theory of having devise or bequeath property, the the lower court use the Compensameasure of damages is the value of tion Act as the yardstick. How can the thing promised. Page, Contr. that be done? The Compensation $ 3235; Thompson v. Romack, 174 Act provides that the industrial Iowa, 155, 156 N. W. 310; Benge commission is the only body having y. Hiatt, 82 Ky. 666, 56 Am. Rep. jurisdiction to ascertain the amount 912; Porter v. Dunn, 131 N. Y. 314, of compensation due a party. Even 30 N. E. 122; Jefferson v. Simpson, this court, under a request of both 83 W. Va. 274, 98 S. E. 212; Graham parties in open court, has refused to v. Graham, 34 Pa. 475; Dilger v. accept the responsibility placed on McQuade, 158 Wis. 328, 148 N. W. the commission by law. Frank Mar1085; Page, Wills, $ 78. The neg- tin-Laskin Co. v. Industrial Comlect of a testator to make a will in mission, 180 Wis. 334, 193 N. W. 70. accordance with a contract is a This court assumes that the Combreach of the contract which will pensation Act furnishes a definite subject the estate to an action for and certain rule to determine the damages. Hawley v. Smith, 45 Ind. amount due a claimant under it. 183-211; Drummond v. Crane, 159 Not so. There are trials and tribuMass. 577, 23 L.R.A. 707, 38 Am. lations under the Compensation Act St. Rep. 460, 35 N. E. 90; Newton as bad as under personal-injury acv. Newton, 46 Minn. 33, 48 N. W. tions at common law. The case last 450; Wylie v. Coxe, 15 How. 416, 14 cited is one where litigation has been L. ed. 753; Chamberlain v. Dunlop, pending under the act for nearly six 126 N. Y. 45, 22 Am. St. Rep. 807, years, and the end is not in sight. 26 N. E. 966; Mills v. Smith, 193 Now why may not the parties to Mass. 11, 6 L.R.A.(N.S.) 865, 78 N. this action have preferred to setE. 765; Page, Wills, 76–78; Page, tle their difference even under comContr. § 2935; Thomp. Wills, $ 33. pensation, and substitute a contract Many more cases might be cited to obligation in lieu of the compensathe foregoing propositions of law. tion obligation? The Compensation But I think there is no real differ- Act expressly recognizes the rights ence in the authorities. The cases of parties to compromise their difcited in the opinion to the contrary, ferences, and such a compromise I think, will all be found to be based can only be set aside by the comon the principle of implied contract mission, and then only within one as for services, on a past considera- year. Stat. 1919, § 2394–15. This tion, or where breach of contract court is setting up an unconstituhas been waived and action brought ţional body to fix and determine on quantum meruit.

compensation due Tony Frieders, The conclusion of the court to sub- long after the constitutional board (Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.) has lost jurisdiction to set aside the ing of the opinion in this case, the voluntary compromise of the par- court has followed its former deties. The fact is that Tony Fried- cisions in upholding contracts as ers and his uncle compromised a made—even hard and unconscionpersonal-injury claim—whether un- able contracts. See Brosnihan v. der the common law or compensa- Brosnihan, 180 Wis. 360, 193 N. W. tion does not matter. That compro- 74, where the court says: “The remise was such as has been uni- lief granted by the lower court, versally recognized as a proper and therefore, is such as neither of the legal subject of contract. They parties contemplated, and amounts made a contract everywhere recog

to the making of a new contract, nized as valid and binding—a con- which the lower court, in the exertract settling

settling a personal-injury cise of its equitable jurisdiction, had claim such as is made every day no power to award, and which this many times. The terms of the con- court cannot grant. tract may be somewhat unusual, but If it be said that the amount of be it remembered it is the terms of the verdict is large, or the judgment the parties to the contract, and

excessive, the court could reduce the which they had a right to make. same or grant a new trial. But that They were terms not only agree- question was not reached in the deable to both parties, but advanta

cision. For the first time, so far as geous to both parties in the ordinary

I have been able to find, this court course of events. If the terms of

has deliberately impaired the obligathe contract were upheld as the par

tion of a contract which it recogties expressly agreed, substantial

nizes to be valid under the law. justice would be done.

I respectfully dissent. It may be noted that, since the fil- Petition for rehearing denied.

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Measure of damages for breach of contract to will property.

I. Scope, 129.
II. In acti on contract:

a. General rule, 129.
b. Limitations of rule, 137.

III. In action on quantum meruit:

a. General rule, 141.
b. Limitations of rule, 145.

I. Scope. In discussing the measure of damages for breach of contract to make a will only actions for money damages are included within the scope of this annotation. Where a valid consideration has passed for a promise to make a will, the case is included, although the agreement may not be an enforceable contract.

California. Morrison V. Land (1915) 169 Cal. 580, 147 Pac. 259; Roy v. Pos (1920) 183 Cal. 359, 191 Pac. 542.

Connecticut.--Strakosch v. Connecticut Trust & S. D. Co. (1921) 96 Conn. 471, 114 Atl. 660.

Georgia. - Gordon v. Spellman (1916) 145 Ga. 682, 89 S. E. 749, Ann. Cas. 1918A, 852. Compare Hudson v. Hudson (1892) 90 Ga. 581, 16 S. E. 349.

Illinois.-Compare Bross v. Ramsay (1920) 216 Ill. App. 312.

Indiana.-Bell v. Hewitt (1865) 24 Ind. 280; Frost v. Tarr (1876) 53 Ind. 182. Compare Paul v. Synder (1912) 52 Ind. App. 291, 100 N. E. 571.

Iowa.—Thompson v. Romack (1916) 174 Iowa, 155, 156 N. W. 310.

II. In action on contract.

a. General rule. Rule stated.

Where an action for damages is brought for the breach of a contract to give property by will, the general rule is that the measure of damages is the value of the property promised to be bequeathed or devised.

31 A.L.R.-9.

390; Robinson v. Foust (1903) 31 Ind. England.-Hammersley v. De Biel App. 384, 99 Am. St. Rep. 269, 68 N. E. (1845) 12 Clark & F. 78, 8 Eng. Re

Kansas.-Stahl v. Stevenson (1918) print, 1326; Synge v. Synge (1894) 1 102 Kan. 447, 844, 171 Pac. 1164.

Q. B. 466-C. A. Kentucky.-King v. Hanna (1849) 9 Canada.—Legeas v. Trusts & GuarB. Mon. 369; Freel v. Freel (1885) 7 antee Co. (1912) 4 Alberta L. R. 190, Ky. L. Rep. 288 (abstract); Waters v. 20 West. L. Rep. 172, 1 West. Week. Cline (1905) 121 Ky. 611, 123 Am. St. Rep. 802, 5 D. L. R. 389. Rep. 215, 85 S. W. 209, 750. Compare In Jefferson v. Simpson (W. Va.) Benge v. Hiatt (1885) 82 Ky. 666, 56 supra, the rule was stated as follows: Am. Rep. 912; Walker v. Ganote (1909) “We think that, in the absence of - Ky. - 116 S. W. 689.

fraud, mistake, duress, or some other Massachusetts.—Wellington v. Ap- fact, where the parties are competent thorp (1887) 145 Mass. 69, 13 N. E. to make the contract, the amount stip10; Clarke v. Treasurer (1917) 226 ulated or the value of the thing conMass. 301, L.R.A.1917D, 800, 115 N. E. tracted for constitutes the true meas416. Compare Dixon v. Lamson (1922) ure of damages for the breach there242 Mass. 129, 136 N. E. 346; Noyes v. of." Noyes (1916) 224 Mass. 125, 112 N. E.

Agreement to give money. 850.

The syllabus by the court in Freel Michigan.—Ruch v. Ruch (1909) 159

v. Freel (1885) 7 Ky. L. Rep. 288 (abMich. 231, 124 N. W. 52.

stract), notes the ruling as follows: New Hampshire.-Day v. Washburn

“A promise to pay for services about (1911) 76 N. H. 203, 81 Atl. 474.

to be rendered by a provision in the New York.-Andrews V. Brewster obligor's will is binding, and if the un(1891) 124 N. Y. 433, 26 N. E. 1024; Re dertaking is broken by the obligor the Mallory (1895) 13 Misc. 595, 35 N. Y.

person who has rendered the services Supp. 155; Re Wescott (1898) 34 App.

can recover the contract price from Div. 239, 54 N. Y. Supp. 545. Compare the decedent's estate; and his acceptRe Funk (1906) 49 Misc. 199, 98 N. Y.

ance of a less sum given him by the Supp. 934; Leahy v. Campbell (1902)

will does not estop him from setting 70 App. Div. 127, 75 N. Y. Supp. 72.

up a claim for the balance of the conNorth Carolina.—Spruill v. Daven

tract price.” port (1845) 27 N. C. (5 Ired. L.) 463.

In Bell v. Hewitt (1865) 24 Ind. 280, Compare Whetstine v. Wilson (1889) the action was on a memorandum in 104 N. C. 385, 10 S. E. 471.

writing, promising the plaintiff that if North Dakota.—Torgerson v. Hauge

he would continue to live with and work (1916) 34 N. D. 646, 3 A.L.R. 164, 159

for the promisor, he would leave plainN. W. 6.

tiff $500 in his will, in addition to his Pennsylvania.--Bash v. Bash (1848)

usual wages. The court held that the 9 Pa. 260; Thompson v. Stevens (1872)

services were not performed under 71 Pa. 161; Snyder v. McGill (1919)

a mere expectancy of a legacy, but 265 Pa. 122, 108 Atl. 410; Cottrell's under an express promise, on the Estate (1875) 11 Phila. 93. Compare breach of which the amount promised Moorehead v. Fry (1854) 24 Pa. 37.

could be recovered. South Carolina.--Hussey v. Surles

A similar conclusion was reached in (1912) 91 S. C. 284, 74 S. E. 618.

King v. Hanna (1849) 9 B. Mon. (Ky.) Tennessee. Waddell v. Waddell

369, where the promised legacy was (1897) Tenn, —, 42 S. W. 46.

$1,000. Texas.--Henderson v. Davis (1917) In an action to recover damages for

Tex. Civ. App. - , 191 S. W. 358. failure to perform an oral agreement

West Virginia.-Jefferson v. Simp- to make a will providing for plaintiff son (1919) 83 W. Va. 274, 98 S. E. 212. a certain income for life, the court

Wisconsin. Compare Murtha v. held that the measure of damages Donohoo (1912) 149 Wis. 481, 41 L.R.A. should be “such a sum as would, at (N.S.) 246, 134 N. W. 406, 136 N. W. 5 per cent interest, yield the agreed 158.

income during the expectant period of life, and leave no balance at the end sum of $10,000, together with interest of such term." Strakosch v. Connecti- thereon." cut Trust & S. D. Co. (1921) 96 Conn. It is held in Robinson V. Foust 471, 114 Atl. 660.

(1903) 31 Ind. App. 384, 99 Am. St. In the case of Wellington v. Apthorp Rep. 269, 68 N. E. 182, that full re(1887) 145 Mass. 69, 13 N. E. 10, covery of the amount promised should wherein it was shown that the plain- be had under a promise to leave $3,500 tiff rendered valuable services in con- by will, in consideration of labor, servsideration of an express agreement to ices, and support, the court saying: leave him a legacy of $5,000 and the "The instrument sued on is in writing, amount of the expenses incurred by signed by the decedent, and contains him in accompanying the decedent on a promise by the decedent to pay the a trip to California, the court held that claimant a sum of money from his the recovery should be for $5,000 and estate if she be living at the time of interest, in addition to the amount of his death. She avers the considerathe expenses as found at the trial in tion for this promise. The decedent the lower court.

entertained for his grandson the love In Hammersley v. De Biel (1845) 12 and affection of a father, and desired Clark & F. 45, 8 Eng. Reprint, 1312, that he be properly provided for in wherein it appeared that marriage his last sickness. He contracted for was induced by a promise of the the performance of certain acts, and bride's father to leave £10,000 in his placed an estimate upon their value will, the court said: “If a party holds to him. Nothing is averred to authorout inducements to another to cele- ize us to disturb that estimate. We brate a marriage, and holds them cannot substitute our judgment for out deliberately and plainly, and his. The decedent obtained all he the other party consents, and cele- contracted for, and the claimant, rebrates the marriage in consequence lying upon the promise as made, perof them, if he had good reason formed the conditions agreed upon." to expect that it was intended that It was held in Cottrell's Estate he should have the benefit of the (1875) 11 Phila. (Pa.) 93, that under proposal which was so held out, a contract whereby the promisor court of equity will take care that he agreed with the claimant to leave her is not disappointed, and will give in comfortable circumstances after his effect to the proposal.

It is death, so “that she should not be unimpossible to say for a moment that der the necessity of keeping boarders, it was not held out to the Baron de or of doing any work for a livelihood Biel, as a part of this arrangement, after his death,” if she would attend that £10,000 should be left by will for to and take care of him during his the purpose of being settled upon the lifetime, the measure of damages children of this marriage. It is im- would be the amount that would keep possible to suppose for a moment that her without work, taking into considthat did not operate upon the mind of eration her condition in life. the baron, and induce him, with ref- So, it was said in Thompson v. erence also to the other provisions Stevens (1872) 71 Pa. 161: "In the contained in this instrument, to cele- case now before us,

the conbrate the marriage; and I am sure, tract, as proved

and confirmed under these circumstances, your lord- by the testimony of

witnesses, ships will see the propriety and equity was that 'if she (the plaintiff) would of giving effect to those expectations. stay with him (the testator) as long

Therefore, I recommend your as he lived, he would provide and give lordships to affirm the judgment of the her full and plenty after he was gone, court below... That the defend- so that she need not to work. Now, ants, C. P. Thomson and the appellant, certainly, here is a measure by which as the executors of the will of J. the amount can be ascertained, and Poulett Thomson, should pay into the which brings the case within the rule bank to the credit of the cause the of certainty to a common intent. Con


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