90 W. Va. 693 | W. Va. | 1922
Upon notice and verified account, plaintiff, on March 10, 1921, moved the circuit court of Lewis county for judgment for $14,800. Of this amount $13,725 is for services rendered by plaintiff for defendant as an employee upon his farm during the years 1891 to February, 1921, inclusive; $300 for money paid for defendant; and $775 for services rendered by plaintiff’s minor son for the years 1916 to 1920 inclusive. Defendant pleaded non-assumpsit, the statute of limitations, and also filed off-sets amounting to $15,000, in which he seeks recovery for “use, rent and occupation of farm” for the years 1892 to February, 1921, inclusive, $14,750, and for “use of silo machine cutter”, $250. The charges of each
The defendant made various assignments of error; all but one have been practically abandoned. The only one relied on is that the verdict is contrary to the law and the evidence.
Plaintiff is defendant's nephew; his mother, now deceased, was defendant’s sister. At the time of trial, plaintiff was 42 and defendant 82 years of age. In 1891 defendant and his brother Hezekiah Snyder, were the owners of a 600 acre farm located about three miles from Weston, upon which they resided. The two were never married.
Hezekiah died in October, 1914. The defendant, upon his brother's death, became sole owner of the farm, probably by will, though how is not affirmatively shown. Defendant has continued to reside there ever since. In 1891 plaintiff lived with his parents on a farm about a quarter of a mile from the defendant’s residence. He was then about 12 years old. That year hé entered upon the service for which he claims compensation in this action. The exact nature of the arrangement under which plaintiff entered this service is not clear. Plaintiff testifies that the two uncles hired him and that he expected compensation, but that the amount was not fixed. Defendant says “He came there while a small boy * * * just like other boys, running around, fishing about the place, and continued to run around, was one of the family almost, in fact I had no family and liked to have a little fellow around”, but substantially denies that there was any understanding between them then that plaintiff was to be paid for his services. Whether there was any understanding between them then, or if there was, what it may have been, is not so material. The record shows that for a period of about 12 years, from 1891 to 1902, the date of plaintiff’s marriage, he lived with his parents and worked for defendant and his brother, Hezekiah, on the farm, doing at first the light work usually
At this time he walked a distance of a mile or two daily to work on defendant’s farm. It is well established that his duties included the raising of feed and grain, building of fences, repairing buildings and machinery, ploughing and the usual farm work, and defendant admits these were performed in a satisfactory manner. Plaintiff did not at any time move his family to the Snyder farm, nor did he stay there prior to the death of his uncle Hezekiah, except occasionally to eat a meal, and possibly now and then to spend a night there. In no sense could it be said that during the period from 1891 to 1914 he made the Snyder home his home. Plaintiff had a home of his own at his father’s from 1891 to .about 1908, when he moved to Weston, and has kept and ■maintained a home for his family, consisting of his wife and -five children, since that time at the places already stated, .and in walking distances to the defendant’s farm.
It appears that his Uncle Hezekiah was a very vigorous man practically up to the date of his death at the age of 82 years, and was a hard worker, the defendant not being so vigorous, and that after Hezekiah died the defendant was not
The defendant claims that plaintiff was a member of his family. He swears he always considered him “as one of the family almost”. He may have been “almost” a member of his family, but not sufficiently so for his purposes in this case. In attempting to show that plaintiff never expected pay for his services, the defendant offered evidence to the effect that plaintiff became a bankrupt about 1912 and did not list in his assets any account against the defendant; but if plaintiff were a member of defendant’s family, it is rather strange that he and his wife and children were never invited to live on the 600 acres, and especially, so at that trying period. It appears that his bankruptcy was due to his partnership in the timber business, but it is quite possible that his constant and faithful service to the defendant, without receiving compensation therefor as he ought to have done, may have very materially contributed to his misfortune. Plaintiff moved a number of times, first into rented property and then into a house he built for himself, but never upon defendant ’s farm. True, plaintiff stayed with defendant at his farm for a considerable period during the last five .years of service, working for him in the day time and caring for him at night, but this was all for the benefit of the defendant. The defendant was too feeble to attend to his farm, in fact, too' frail to take care of himself. He is an old man, he was alone, and plaintiff thought it unsafe for defendant to remain alone at nights. We can not say as a matter of law that plaintiff at any time during his period of thirty years of service for defendant was a member of his family. There is no showing of that personal touch or that spirit of affection which impels members of one family to work for the pleasure and benefit of all.
True, plaintiff rendered no bill for his services during his period of service, but he kept an account of his services, and when he finally asked defendant for payment, defendant asked him to render him a bill. Before doing so, however, he
Another circumstance repels the inference of family relationship. In this suit defendant filed off-sets against the plaintiff for $15,000. Off-sets imply a contract. The defendant said in effect that Re did not owe the plaintiff, but even if he did owe him any part of plaintiff’s demand, yet the plaintiff owed him $15,000 for use, rent and occupation of his farm and the use of a silo machine cutter and which sum he had promised to pay. By filing his off-sets he in effect sued the plaintiff therefor upon an alleged contract. “Where a party defends against a claim for services, on the score of relationship, and that the services were compensated by paternal care, etc., he should not, by his pleading, claim a set-off for board, etc.; such charges imply that there was a contract between the parties.” Schwarz v. Schwarz, 26 Ill. 81. We think that considering the nature of plaintiff’s demand and defendant’s off-sets, the defendant practically admitted that there was a contract between them. Whether there was an express promise to pay plaintiff is not important; an implied promise was just as effectual and binding. The plaintiff performed valuable services; the defendant knowingly accepted them and greatly benefited thereby, and the law implies on the part of the defendant a promise that he would pay a reasonable compensation therefor. The jury was so instructed and it so found.
When defendant was rendered the- account by plaintiff, he said in substance that the items for the earlier years of service were alright, at least he had no substantial objection to them. They started at $25 per year and gradually increased to $400 per year up to the year 1914, when plaintiff charged
It is strenuously insisted by defendant’s counsel that plaintiff was a member of defendant's family; that this is shown by the blood relation existing between them and by the circumstances detailed, and that if plaintiff was, in fact, a member of defendant’s family, then it is presumed that the services performed by him were gratuitous, and that the evidence offered by the plaintiff is insufficient to over-come that presumption. In determining questions of this character kinship by blood often plays an important part; but one may be a member of a family without being connected by blood or marriage to any members of it. Again, one may be ever so closely related by blood to the members of a family,
We can not say as a matter of law, from-this record, that plaintiff ever lived with defendant, at any time, as a member of his family. This question was submitted to the jury and defendant can not complain. It has been held that “The presumption that services are intended to be gratuitous applies only to services which are rendered between persons who are living together as members of the same family. The presumption does not exist as between persons who are related but who are not living together.” 3 Page, Law of Contracts, Sec. 1454, citing: McConnell v. McConnell, 75 N. H. 385, 74 Atl. 875; Winkler v. Killian, 141 N. C. 575, 54 S. E. 540; Brown v. Cummings, 27 R. I. 369, 62 Atl 378; Williams v. Williams, 114 Wis. 79, 89 N. W. 835; Winter v. Greiling, 114 Wis. 378, 90 N. W. 425. There might be special circumstances under which this rule would not apply, but as a general proposition of law we think it is sound.
It would have been unnatural under' the circumstances shown in this case for plaintiff to devote thirty of the best years of his life to a wealthy bachelor uncle without any expectation or understanding on his part that he would be compensated; and it would have been just as unnatural for the uncle to accept such valued services without any obligation on his part to pay for them. The jury was fully justified in holding that the services rendered were not gratuitous
Affirmed.