OPINION OP COURT.

The following is taken, verbatim, from the opinion.

The authority which is relied on to sustain the claim that the petition states a good cause of action is Newbold et v. Michael et, 110 OS. 586. In that case it was held that equity will not enforce, by specific performance, a verbal contract to leave real and personal property to another by will in consideration of personal services, unless the character of the services were not intended to be and not susceptible of being measured by a pecuniary standard or unless the contract has been so far executed that a refusal would operate as a fraud.- It is contended that the averment of the petition that the care and services and nursing were not intended to be and were not susceptible of being measured by a pecuniary standard, brings the ease within the latter portion of the syllabus of the authority just cited. The court, however, is of the opinion that the averment is no more than a statement of conclusion, and a demurrer admits only such facts as are well pleaded.

The petition shows that the services which were being performed were the ordinary services of caring for and nursing elderly people. It is within the knowledge of every lawyer that compensation for -such services is readily assessed in an action- at law-to recover the value thereof. It is only a contract fór the performance of such peculiar and unusual services as will not permit of the value thereof being assessed by a jury that will justify a court of equity decreeing specific performance.

The petition discloses that the defendant has repudiated the contract and refused to allow the plaintiff to further perform. A court of equity could not order specific performance on the part of the defendant without, at the •same time, requiring the plaintiff to specifically perform the remainder of the services which he contracted to perform, but a court of equity will not, as a rule, order the specific performance of personal service. The principle is stated in 25 R. C. L. 305.

For the reasons the judgment will be affirmed.