requiring a "higher degree of proof to sustain a finding of fact which must be established by `clear and convincing' evidence" than where a mere preponderance is sufficient
How later courts described this case
- requiring a "higher degree of proof to sustain a finding of fact which must be established by `clear and convincing' evidence" than where a mere preponderance is sufficient
Written by the judges who cited it.
The opinion
*88 WORTHEN, Justice
(concurring in result);
I concur in the results reached by-Mr. Justice Wade. I am inclined to the view expressed by Mr. Justice Henriod that having pleaded an express contract the respondent should prevail on that cause or not at all. Plaintiff failed to establish the express contract pleaded — that decedent agreed to pay her for her services $3,300. The liberalized rules of pleading should not be interpreted so loosely that there is no boundary between a cause of action predicated on an express agreement and one predicated on an implied agreement. It seems incompatible to hold that in failing to prove a pleaded express contract the plaintiff may take the benefit of an implied contract not pleaded and which is supported only by the evidence claimed to support the express contract as a windfall.
However, I believe it unnecessary to rest my conclusion that plaintiff is not entitled to recover on an implied contract for services rendered on the question of pleading.
I agree that the jury’s finding that there was an implied contract to pay the reasonable value of services rendered is not supported by the evidence. I am unable to agree with the holding of the majority opinion that the evidence is ample to support a finding of an implied contract to pay Mrs. Lovett the reasonable value of her services if she had fstiled to fulfill her express promise that she would be well paid.
I do not treat the gift of jewelry as a payment for services under an implied contract. It is because I believe respondent rendered services in expectation of reward by gift or legacy that I rule out the idea of an implied contract. I think that the gifts made fortify the position that respondent and Mrs. Giesy never had a contract express or implied. Likewise, if there was contract for payment for services the gifts of jewelry, absent an agreement to satisfy the contract by the gifts, would not discharge the contract.
The record discloses that decedent did state to respondent that she would be well paid for her services and that she would be well taken care of. This fell far short of a promise to pay $3,300 as alleged by respondent.
It appears to me that the respondent believed she would fare better by such gift or bequest as decedent might make than by receiving only what was reasonable compensation. Respondent did not elect to have an understanding with the decedent as to payment for the services rendered. I do not believe that decedent undertook or intended to undertake to pay in cash. I do not believe that respondent expected to be paid in cash — nor do I believe that respondent wished to have the matter reduced to the specific terms of a contract.
In quoting from Williston on Contracts this Court said; 1
*89 “It is a question of fact if services are accepted whether a reasonable man in the position of the parties would understand that they are offered in re~ turn for a fair compensation, or would rather suppose either that they are offered gratuitously, or if not, that the recipient might think so. * * * The question is purely one of fact, varying in every case, but with the burden always on the party who, alleges a contract and seeks to enforce it, to prove its existence.” (Emphasis ours.)
Respondent knew that decedent had funds to pay for any services rendered. I am of the opinion that respondent preferred to rely on the gratuity of decedent — well along in years, with no parents, children or close relatives, than to be paid only the reasonable value of the services. The conduct of both respondent and Mrs. Giesy over the full period must lead to the conclusion that Mrs. Giesy was evidencing appreciation for the services of respondent, and respondent rather considered herself not as an employee but as a friend.
It appears that the case falls within the class of cases where the services were performed in expectation of reward by gift or legacy. There is little question that respondent anticipated and received substantial gifts from Mrs. Giesy. About six months after respondent first visited her apartment, Mrs. Giesy, in company with respondent, purchased a diamond ring for $2,070 and on the same day showed the ring to respondent’s husband in respondent’s presence and said: “This ring is to be your wife’s. I bought it for her.” Approximately two years later Mrs. Giesy gave the ring to respondent and near the same time made her a gift of about $5,000 worth of jewelry. If respondent was relying on an implied contract she properly would have protested and advised Mrs. Giesy that since she was to be paid for her services the gift should not he made.
It further appears from the evidence that respondent was upset and shocked when she learned the contents of the will and found that she had received no legacy of any particular value. Respondent never demanded any money and was never paid any during the time she associated with Mrs. Giesy— not as a servant but as a companion. All employees of Mrs. Giesy were paid regularly. The entire conduct of both parties would seem to indicate that the respondent had anticipated that she would be the recipient of gifts or legacies and that she anticipated no other compensation.
I am of the opinion that where a claimed employee asserts that there was an agreement to pay for services — either express or implied — and no payment is ever requested or discussed, and as soon as the decedent’s mouth is shut, a demand inconsistent with the conduct of the claimed employee should be badged as fraudulent. When, as here, gifts are accepted without a suggestion that they be applied on account or without the suggestion that they constitute overpayment, *90 it should be very persuasive that the parties never understood that they were on a contract relationship.
If respondent performed her services in expectation of reward by gift or legacy, she should not be permitted to claim also by contract after her arms were filled with gifts and the mouth of the other party is shut.
Nor do I think that there was any basis in law for submitting the question to the jury for them to speculate on or to make another gratuitous award to respondent.
. Burton v. McLaughlin, 117 Utah 483 , 217 P.2d 566 .