56 Vt. 209 | Vt. | 1883
The opinion of the court was- delivered by
I. The defendant moved that a verdict be directed in his favor. To entitle the plaintiffs to recover it was incumbent upon them to show that Mrs. Ashley was at work for the defendant under an express agreement for pay, or, such a state of facts and circumstances as satisfactorily and fairly showed that both parties at the time expected and understood that her services were to be paid for. The plaintiff, Ellen, testified that the defendant told her to stay there and he would do well by her, that he wanted her to work for him, that he was going to pay her, that he wanted her to stay with him. This evidence
II. The foregoing question was, in effect, the same one that arose on the exception to the charge that the plaintiffs might recover if the facts were found to be such as their evidence tended to show; and for the reason above given there was no error in this respect.
III. The defendant requested the court to charge that if the jury found that the “defendant told the plaintiff to stay there and he would do well by her,” that such statement did not constitute proof of a contract upon which assumpsit could be maintained. Such statement was but a fragment of the evidence and the court was right in declining to give such an instruction. Singling out and giving undue prominence to certain facts, ignoring other facts of equal importance in ‘a proper determination of the case, has been held improper ; (Sackett’s Instructions to Juries, secs. 11 and 12); and if such instructions are erroneous, requests for them must be equally so. This view of the case is sustained by Thornton v. Thornton, 39 Vt. 122.
IY. In reply to the request that “ If the receipt was given understandingly, without fraud or duress, it cut off the plaintiffs’ right of recovery,” the jury were told that if the matter of the receipt was just as the defendant claimed it, it was a good defence ; if it was as the receipt on its face imported, a settlement, and so intended and understood, then the plaintiffs could not go behind it. We think the charge is couched in stronger terms in favor of the defendant, than the request called for and was not error.
Y. As to the matter of duress, there was no evidence in the case tending to show it, and the court would not have been justified in giving instructions upon that subject.
YI. There was no error in the omission of the court to instruct the jury as to the effect of the non-payment, at the time, of.the sum named in the receipt. The law, as to the receipt and
VII. This ease was tried upon the theory that before Mrs. Ashley went to Burlington in her nineteenth year, she was a member of Mrs. Hendee’s family, and that while at work as such, the law implied no promise to pay for her services. She left, and in a few weeks returned; and the main question litigated upon trial was, whether her former relation as á member of the family revived upon her return and so continued, or, was she at work under a contract for wages? The court charged the jury that if upon . her leaving home, after she became of age, the family relations ceased, and it was so understood by both parties, and she subsequently returned and went to work at the defendant’s request, the law would imply a promise to pay for her services. The evidence of the defendant tended to show, and the trial proceeded upon the theory, that the relations which Mrs. Ashley sustained to the family were the same after her return to it as they were before she left it, and that after his mother’s death he stood in the same relation to her that his mother had. If such facts were found in favor of the defendant, the fact of the character in which she returned, whether as a servant or a member of the family, becomes material, and we think that upon her return, the law would imply no promise to pay for her services, although it was agreed at the time she left that their family relations had ceased as stated in the charge; but her recovery must depend either upon express contract, or such a state of facts and circumstances as indicated an expectation of both parties that she should be paid for her services. Such instructions should have been given ; not having been, there was error.
VIII. The charge of the court upon the burden of proof, and what it was necessary the plaintiffs should show, to entitle them to a recovery, in case there had been no change in their former relations, was sound law, and is the correct rule governing such cases, viz: that the burden of proof was on the plaintiffs, that they must overcome the presumption that Mrs. Ashley was serving without pay, that they must clearly establish a
Eor the error indicated let the judgment be reversed and cause-remanded for a new trial.