## Facts

- Mrs. Emma F. Kellum operated a rooming and boarding house for hire.
- For years before her death, Mrs. Lena Browning (Kellum’s aunt) lived with Kellum and, for at least the five years immediately preceding her death, Kellum furnished Browning room, board, fuel, laundry, and extensive personal and nursing care.
- Browning required special care and attention for much of that period.
- During Browning’s lifetime, she occasionally gave Kellum checks that Kellum claimed were payments toward the care and accommodations.
- Browning died in August 1925, leaving an estate of about $30,000 and a will that made specific monetary gifts to certain nieces and nephews (including Kellum) and left other property to charitable and religious beneficiaries.
- After Browning’s death, Kellum filed a claim against the estate for $4,680 for nursing, care, and providing room and related necessities for the five years preceding death.
- The estate’s administrator and the master commissioner initially allowed the claim, but exceptions were filed.
- In responding to the exceptions, Kellum alleged Browning had agreed to pay for the services and, in a more detailed statement, asserted compensation for a longer period (more than nine years) at a stated weekly rate, while crediting amounts Browning had paid during life.
- An issue out of chancery was tried to a jury; at the close of Kellum’s evidence, the trial court peremptorily instructed the jury to find for the estate, entered judgment sustaining the exceptions, and denied Kellum’s claim.
- Kellum appealed from the directed verdict and denial of her claim.

## Issues

1. Whether, despite the presumption that services rendered within a family or family-like household are gratuitous, Kellum’s evidence was sufficient to let a jury find an agreement by Browning to pay for room, board, and nursing care (either by express contract or contract implied in fact).
2. Whether the trial court erred by directing a verdict for the estate at the close of Kellum’s proof instead of submitting the contract question to the jury.

## Decision

- The Court of Appeals of Kentucky reversed the judgment for the estate.
- The court held the trial court erred in giving a peremptory instruction because the evidence, viewed favorably to Kellum, could support a finding that Browning agreed to compensate Kellum.
- The court remanded for further proceedings consistent with its opinion, requiring the claim to be submitted to the jury on express-contract and implied-in-fact theories.

## Legal Principles

- When parties live together as members of the same family (or in a relationship raising the same expectation), the law presumes that ordinary services, including care and attendance, are rendered without expectation of pay; a promise to pay is not inferred from the services alone.
- That presumption may be overcome by proof of an agreement to compensate, which may be shown by words or by circumstances and conduct indicating mutual assent.
- An “express contract” need not be proved by a formal, categorical verbal promise; facts that constitute, or are equivalent to, such an understanding may suffice.
- A contract implied in fact differs from an express contract only in the mode of proof; it is inferred from the parties’ circumstances, conduct, acts, and relationship, not imposed by law without assent.
- A claimant may rely on both express-contract and implied-in-fact theories when both are pleaded and no election between them is required.
- On a motion for a directed verdict, if reasonable jurors could find for the claimant on the evidence presented, the issue must be submitted to the jury.

## Conclusion

Because Kellum presented evidence— including Browning’s partial payments, the nature and duration of the services, and the circumstances of providing paid accommodations in Kellum’s boarding-house business— from which a jury could find an express or implied-in-fact agreement to pay despite the family relationship, the directed verdict for the estate was improper and the case was reversed and remanded for a jury determination.


Kellum v. Browning's Administrator, 21 S.W.2d 459 (1929)