majority">

Opinion by

Mr. Justice Schaffer,

Daniel G. Bailey, a man of grossly intemperate habits, had been found to be an habitual drunkard, and a committee was appointed for him; the committee, however, had been discharged and his property returned to him about a year before the date of the paper which appears in the Reporter’s summary, and which will be referred to herein as a deed of trust. Between its date, June 20, 1888, and Bailey’s death in November, 1913, so far as the testimony discloses, no one knew of the existence of this paper. Two years following his decease, plaintiff brought suit against Bailey’s estate for services he claimed to have rendered during the period of twenty-five years between the date of the writing and Bailey’s *180death, basing his right to recover on the deed of trust, as will be seen by reference, to the statement of claim, which also appears in the Reporter’s summary.

The services which plaintiff claims to have rendered consisted in caring for the decedent when intoxicated and recovering from the effects of drink, and in aiding him to some extent in the care and management of his property. When sober, Bailey required no services from plaintiff; he was fully competent to care for himself and his possessions.

The trial judge submitted the case to the jury in a charge which permitted it to find liability by the decedent’s estate for the value of the services either based on the deed of trust or independent of it. The jury found for plaintiff, and, specially—under the court’s direction that the fact be ascertained—that the verdict was “based on the deed of trust.”

The special finding was on the lines of the logic of the base, because the plaintiff had' declared on the deed of trust. In view of this finding and plaintiff’s statement of claim, it becomes important to examine and analyze the deed of trust, to determine whether any such claim as now made could be based on it. The paper was not acknowledged and, of course, not recorded; although it stipulates that it shall be signed by both parties, it was not executed by plaintiff. It grants, bargains, sells, assigns, transfers and sets over to Walbridge (plaintiff) all Bailey’s property “upon the following terms and conditions: to use, occupy, invest, reinvest, lease and manage the same [as] profitably as possible......and to pay and expend the income and principal, so far as may be necessary, less reasonable expense charges and expenses that may occur in so caring for and managing said estate, for the due and proper care and support and maintenance of him the said D. G. Bailey so long as he may live and after the death of the said Bailey to pay and transfer to such person or persons and in such manner as the said Bailey may direct by his last will and testament *181the balance of said estate remaining in the hands of said Walbridge.”

Plaintiff did nothing under the trust, collected no income, made no expenditures, indeed did not act under it at all. He now sets up that the parties to the deed, he and Bailey, treated it as a contract of employment or power of attorney, and contends that it should be so construed; but the difficulty in the way of this construction is that it is neither of these things, and no court could properly so hold it. How such a writing can form the basis of recovery for personal services in an action of assumpsit against a decedent’s estate, we are at a loss to understand; yet on this paper, the plaintiff bases his case, as an examination of his statement will show. Liability is laid in the statement not upon an implied promise to pay for the value of services rendered, but it is set forth therein that, by the deed of trust, decedent “employed plaintiff to render to and for him the services set forth and described in said contract.” No such services as those claimed to have been rendered were set forth in the deed of trust nor does it “employ” the plaintiff to do anything. It creates him a trustee, in which capacity it is admitted he never acted. During all the time, from the execution of the deed until his death, Bailey retained complete dominion over, title to and management of all he possessed. The statement further avers plaintiff, acting iinder this “contract,” took care of the person and estate of the decedent from its date until his death, that decedent promised plaintiff should be well paid for his services and that, relying on these promises and the “contract,”- plaintiff continued to serve decedent. The jury by its special finding based its verdict on the deed of trust. It is too manifest for dispute that such a claim as that here made,—for personal services rendered to the decedent,—could not arise out of the deed of trust, and, therefore, plaintiff’s cause of action as pleaded fails.

*182The court, as before stated, instructed the jury to find, if they decided in plaintiff’s favor, whether the amount was due under the deed of trust or independent of it. Even should it be conceded that there could be a recovery under the statement of claim, for the value of services rendered, there was no proof of their value. It is true the court permitted a note drawn to plaintiff’s order for $10,000, signed by Bailey, which was found after the latter’s death among decedent’s papers in an envelope with his will, to be offered in evidence and considered by the jury “as evidence of debt”; and a witness, called by plaintiff, testified that Bailey, six months before his death, took an envelope from his desk and exhibited it to him, saying that, when he was gone, plaintiff would be well taken care of. This witness, however, did not see the note, could not identify the envelope, and could in no way connect the note offered in evidence with what he saw or heard during the alleged interview; moreover, there was no evidence to establish that the envelope shown the witness was the one which contained the note and will. Under these circumstances, the note which was past due at the time of Bailey’s death, was not evidence of any liability by him to plaintiff. Unless some connection is shown between an undelivered note found in a decedent’s possession, and an alleged liability of decedent to the payee named in the note, the note is not evidence of such liability: Bean’s Est., 264 Pa. 131.

The claim of plaintiff could not depend for its validity on the deed of trust, and, even conceding the right to recover, under the statement, irrespective of such deed, since there was no evidence of the value of the services rendered, the jury could not be permitted to surmise their worth. In either aspect of the case, the court should have affirmed defendant’s point for binding instructions.

The judgment is reversed.

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