Opinion
No. 3977.
Decided December 5, 1950.
An agreement to provide life support and maintenance will not ordinarily be enforced by a decree of specific performance. Where the plaintiff was held not entitled to the relief sought by her pleadings they may be amended for such relief in law or in equity as the evidence and circumstances of the case warrant.
BILL IN EQUITY, for specific performance of an agreement for the life support and maintenance of the plaintiff by the defendants, a son and daughter-in-law. The bill alleges that in 1946 the plaintiff and her husband conveyed real and business property, together with the good will and stock in trade of a restaurant business, to the defendants in exchange for their agreement to support and maintain the plaintiff and her husband for life and provide for their burial. It is further alleged that the defendants have refused to perform their agreement for support, have failed to pay $400 for the burial of the plaintiff's husband and have converted to their own use personal property of the value of $500. The bill seeks specific performance of the agreement, the furnishing of a bond by the defendants for that purpose and an accounting of the personal property converted by the defendants. The defendants' demurrer to the bill was sustained and plaintiff's exception was reserved and transferred by Goodnow, C. J.
Arwe Arwe for the plaintiff.
Robert W. Upton and William D. Tribble for the defendants.
"A promise to render personal services or supervision will not be specifically enforced by an affirmative decree." Restatement, Contracts, s. 379. While some early cases did grant specific performance of contracts for support either directly (Stillings v. Stillings, 67 N.H. 584) or indirectly (Hackett v. Hackett, 67 N.H. 424), the rule of the Restatement has been followed in this state for the last twenty-five years and the Stillings case has not been cited or followed. Specific performance of contracts of service is not ordinarily decreed. Kann v. Company, 81 N.H. 535, 541; McCrillis v. Company, 85 N.H. 165, 167; Knox v. Allard, 90 N.H. 157, 163; Allbee v. Elms, 93 N.H. 202; Swanson v. Priest, 95 N.H. 64, 66. When disagreement and unfriendly relations supplant understanding and natural affection, courts have recognized the difficulty and in some cases the futility of compelling a continuance of the agreement for life support. The likelihood that the aged grantor will receive the personal support and maintenance she bargained for is so small that equity does not undertake the dubious effort of enforcing it by an affirmative decree. Restatement, Contracts, s. 373, illustration 2.
It is not disputed that the plaintiff may recover "full and final damages" in an action of law for the total breach of the agreement for life support. Sutherland Damages (4th ed.) pp. 243, 244; McCormick, Damages (1935) s. 144. An action of trover for conversion of the personal property or replevin for its specific return is likewise available to the plaintiff. The proper objection to the plaintiff's bill is not that relief in equity is sought but that the particular equitable relief of specific performance is demanded. While specific performance cannot be granted, any right to other forms of equitable relief need not be foreclosed. See 5 Williston, Contracts (Rev. ed.) s. 1456 n. 4; Restatement, Contracts, s. 354, illustration 1.
As the record now stands the ruling of the Presiding Justice sustaining the demurrer was correct. Although the plaintiff is not entitled to the relief she sought, she may amend her pleadings under R. L., c. 390, s. 9, for such relief in law or in equity as the evidence and the circumstances of the case warrant.
Exception overruled.
All concurred.