Disbrow v. Durand

54 N.J.L. 343 | N.J. | 1892

The opinion of the court was delivered by

The Chancellor.

Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, .living as one household, to each other, there will be no such .implication from the mere rendition and acceptance of the services. In order to recover for the services, the plaintiff must .affirmatively show, either that an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and .proper expectation that there would be compensation. The .reason of this exception to'the ordinary rule is, that the household family relationship is presumed to abound in reciprocal :acts of kindness and good-will, which tend to the mutual com.fort and convenience of the members of the family, and are .gratuitously performed; and where that relationship appears, the ordinary implication of a-promise to pay for services does not arise because the presumption, which supports such implication, is nullified by the presumption that between members of a household services are gratuitously rendered. The .proof of the services, and as well of the family relation, leaves the case in equipoise, from which the plaintiff must remove it, • or fail.

The great majority of cases in which this exception to the • ordinary rule has been given effect, have been between children and their parents, or the representatives of the parents’ estate, and that fact appears to have led the courts of : some of our sister states to speak of it as restricted to cases where such a relationship in blood existed; but it is not perceived how, within the reason for the exception, it is to be limited by mere propinquity of kindred. It rests upon the idea of the mutual dependence of those who are members of • one immediate family, and such a family may exist though •composed of remote relations, and even of persons between whom there is no tie of blood.

To this time, in this state, the cases which have treated of' this subject have dealt only with the relation of parent and' child, or the case where one party stands in loco parentis. Ridgway v. English, 2 Zab. 409 ; Updike v. Titus, 2 Beas. 151 ; Smith v. Smith’s Administrator, 4 Dutch. 208 ; Coley v. Coley, 1 McCart. 350; Updike v. Ten Broeck, 3 Vroom 105 Horner v. Webster, 4 Id. 387, 411; Prickett v. Prickett, 5 C. E. Gr. 478; Gardner v. Schooley, 10 Id. 150; Miller v. Sauerbier, 3 Stew. Eq. 71; Smith v. Smith’s Administrator, Id. 564 DeCamp v. Wilson, 4 Id. 656; Kendall v. Kendall, 9 Id. 91, 99; Stone v. Todd, 20 Vroom 274, 280. But they have not limited the exception to that relation; on the contrary, in Updike v. Titus, supra, Chancellor Green expressed the opinion’ that it contemplates “children, parents, grandparents, brothers,, stepchildren and other relations.” And in this court, in Horner v. Webster, supra, Mr. Justice Depue approvingly referred to’ the exception as applicable to all cases where the parties stand' “in relation to each other of support on one side'and service»on the other.” Without this state, also, I find most reliable authority extending the exception beyond parent and child, where close family relationship has been shown to exist. For instance, it was given effect in Robinson v. Eastman, 2 Denio 152; Scully v. Scully, 28 Iowa 548; Keegan v. Malone, 62: Id. 208, and Hall v. Finch’s Administrator, 29 Wis. 278, in each of which cases the relation was brother and sister, and in Bundy v. Hyde, 50 N. H. 116, where the relation was-brother-in-law and sister-in-law.

In the two Iowa cases cited, the exception was stated in this-language: “Where it is shown that the person rendering the-services is a member of the family of the person served and receiving support therein, either as a child or relative or a-visitor, a presumption of law arises that such services were-gratuitous and, in such case, before the person rendering the- , service can recover the express promises of the party served must be shown or such facts and circumstances as will authorize-the jury to find that the services were rendered in the expectation by one receiving and by the other making compensation, therefor.”

I have not pretended to examine the many cases upon this-subject in the several states. That would be a tedious, exhaustive, and, indeed, profitless task. The exception stands, upon a reason which logically and properly must extend it to all members of a household, however remote their relationship-may be, and, indeed, even to those who, though not of kin,, stand in the situation of kindred in one household.

The proofs offered at the trial in the present case exhibited the existence of a family relationship for a quarter of a century,, from which the brother and sister each derived substantial benefit in the services of the other, and that the services rendered by each were natural and appropriate acts in their respective spheres, looking to the maintenance of the common home. It did not appear that in that long period of time-either of them entertained the thought of demanding or having-compensation from the other.

It is deemed that the case is well within the exception to the-ordinary rule, which has been pointed out.

There wás no error in granting the non-suit.

The judgment will be affirmed.

For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Mague, Reed, Scudder, Bogert, Brown,. Clement, Krueger, Smith, Whitaker. 13.

For reversal — None.