Inderkum v. German Old People's Home

SPENCE, Acting P. J.

Plaintiff brought this action seeking the return of the consideration paid by her for admission to the German Old People’s Home less the reasonable value of her maintenance during the time that she remained in said home. Prom a judgment in favor of plaintiff, defendant appeals.

Defendant is a nonprofit corporation engaged in maintaining a home for aged persons of German descent. In January, 1935, plaintiff entered into a written contract with defendant and, pursuant to the terms thereof, plaintiff paid to defendant the sum of $3,500. Defendant agreed thereby to admit plaintiff to the home and to maintain her during the term of her life. The contract provided, ‘ ‘ Said maintenance shall include comfortable lodging, good board, medical treatment and nursing in case of illness, except that if said Resident shall require any extraordinary or special medical, nursing or other care, the expense thereof shall be paid by Resident.” The defendant also agreed to defray funeral expenses in an amount not exceeding $150 in the event that plaintiff’s estate should be insufficient to defray such expenses. Plaintiff was admitted to the home and remained there until August 30, 1935, at which time she voluntarily left the home and thereafter brought this action.

Plaintiff’s second amended complaint was in five counts. We may omit discussion of said counts other than the fourth count as the findings of the trial court were in favor of defendant on all of the material allegations of the remaining counts. The fourth count was a common count for money had and received. In the answer thereto, defendant denied the allegations thereof and set forth the contract between plaintiff and defendant as an affirmative defense. Defendant further alleged that pursuant to said contract, plaintiff was admitted to the home; that she was maintained there by defendant until she voluntarily left the home on or about August 30, 1935; that defendant had performed and was ready and willing to perform all of the terms and conditions of said contract on its part provided. These affirmative allegations of defendant’s answer were found to be true by the trial court. In finding XVIII, however, the trial court

[735]

found as follows with respect to the fourth count and the answer thereto:

“That the allegations contained in paragraph II of the fourth cause of action, set forth in plaintiff’s second amended complaint are true; and in this respect the court finds that by reason of the following clause contained in the said agreement, said agreement was and is illusory, and without mutuality of obligation: