158 Iowa 98 | Iowa | 1912
Edward A. Oldfield, a resident of Carroll, Iowa, died testate December 2, 1910, and-the defendant, Wm. Trowbridge, was later appointed executor of his estate. On January 11, 1911, the plaintiff filed two claims against the estate, and later a petition was filed which embodied the ■ two claims. The first count of the petition alleged a promise of marriage and a breach thereof during the lifetime of the deceased, and asked damages on account thereof in the sum of $5,000, and the second count averred that in 1893 the plaintiff went to work for deceased on his farm at his instance and request and under an express agreement so to do;
Direct evidence of such an agreement for employment is not necessary, however. If from all of the facts and circumstances appearing in the case it can fairly be said that there must have been such an agreement, it is sufficient.
In 1893 the plaintiff’s husband was living and she had five minor children. She then and at the time she went to work for the deceased lived with her children, and, so far as the record shows, with her husband also, in Mondamin, Harrison county. Oldfield was then living on a farm in Sac
It is a general rule that the fact that one is found doing service for another is prima facie evidence of an employment. 26 Cyc. 1410; Perry v. Ford, 17 Mo. App. 212. And we think the circumstances surrounding the parties and their relationship as practical strangers raise the presumption that the plaintiff went to work for the deceased under an express agreement. It will be observed that there are no allegations in the petition that there was an express agreement as to the compensation that should be paid for such services.
It being impossible to determine what amount was allowed to plaintiff for her services and what amount for breach of promise of marriage, there is no way of correcting this error, and it must be deemed prejudicial.
■ VI. Instruction No. 15 presented-an issue to the jury that was not in the case,, as we understand the record, but it was not in our judgment prejudicial to the estate.
VII. Appellant’s contention that the evidence is insufficient .to sustain the verdict and judgment cannot be sustained. In view of a retrial we shall- not discuss this feature of the case, but we are impressed with the merit of both claims made by the plaintiff.'