57 Wis. 13 | Wis. | 1883
Tbe testimony of Kate Clark, tbe'wife of the defendant, was read in evidence. It is to the effect that on the day the deed from Darby Clark to the defendant was executed, the latter gave it to her to put away, and that she placed it in a trunk under her exclusive control, and kept it there until it was taken to be recorded. The admission of this evidence is assigned as error. This testimony was taken in another and similar action brought by the plaintiff against Martin Clark. It was there objected to as incompetent and immaterial. By a stipulation between the parties this case was determined on the proofs taken in the other caso and no additional testimony was taken. The above facts are agreed upon by the parties to save the necessity of an amendment to the bill of exceptions. Neither in the action against Martin or in this action was any objection made to the competency of Mrs. Clark to testify as a witness for the defendant. In the absence of such objection the alleged error is not well assigned. Moreover, the delivery of the deed by Darby Clark to the defendant, at the time of its execution, is sufficiently proved by other testimony.
The second error assigned is that the court erred in finding that the conveyance of July 14, 1876, by Darby Clark to the defendant was made upon a good consideration, and without the intent to cheat and defraud the creditors of Darby Clark. Whether this assignment of error is well made or otherwise, is a vital question in the case. The circuit judge found, and, we think, upon sufficient evidence, that the defendant left home in 1869, when he reached the age of twenty-one years, and worked for two years on his own account, during which time he saved from his earnings $280.
The legal proposition contended for is well established. There is no implied contract on the part of a father to pay wages to his child who remains with him and renders him services after becoming of age. To recover, in such a case, the child must show an express contract by the father to pay such wages, either by direct and positive evidence of the fact, or by circumstantial evidence equivalent to direct and positive. Tyler v. Burrington, 39 Wis., 376, and cases cited; Wells v. Perkins, 43 Wis., 160. See, also, other cases in this court on the same subject, cited in the briefs of the respective counsel. Rut it is not essential. that the rate of wages or the time of payment be agreed upon. If there is an express contract in such cases to pay for the services, the child thereby becomes the servant of his father in respect to such services, and may recover quantum meruit. This is the doctrine of Wells v. Perkins, supra; also of Manseau v.
ITence, we find in this case not merely a good consideration but a valuable consideration paid for the land by the defendant. We also think the testimony shows an adequate consideration paid therefor. The land is valued at $1,500 at the time it was conveyed. The defendant paid therefor $280 in 1811, and rendered five years’ services on account thereof before the conveyance. The value of his services was not proved, but it appears that he was able to save $140 per year, over and above his expenses, during the two years he was away from home. It is fair, we think, to estimate his services at the same rate during the five years he worked for his father. At this rate the defendant paid nearly $1,000 for the land, exclusive of any allowance of interest. During the last two years of the five the defendant had a wife, who kept the house for the defendant and his father. It is fair to presume that she earned her own living. ■ It should be observed that the defendant continued to render some services to his father after the conveyance, until the death of the latter nearly two years later. The above facts are mainly proved by the testimony of the defendant. The circuit judge evidently believed his testimony, and we must, therefore, take it as true. Our conclusion is that the facts found show there was not only a valuable but an adequate consideration paid by the defendant for the land; and this is probably what is intended in the conclusion of law on that subject.
The third and only remaining assignment of error is predicated upon the conclusion of law that the plaintiff had been guilty of such laches that a court of equity should not grant him relief. Having reached the conclusion that the defendant is a Iona fide purchaser of the land for a valuable and adequate consideration, this alleged error is immaterial, and hence will not be considered.
Upon the whole case we think the judgment should be affirmed.
By the Court.— Judgment affirmed.