217 Wis. 631 | Wis. | 1935
The sole question in this case is whether the evidence sustains the finding of the jury that the services, board, and room were furnished deceased under an express contract obligating him to pay their reasonable value. The claimant’s husband is a nephew of the deceased. Claimant and her husband owned their home in the village of Cataract, Wisconsin, and eighty acres of wild land, of which some three acres were cultivated. Deceased first came to claimant’s home in the summer of 1921. Prior to that he had lived upon a farm. He stayed at claimant’s home from time to time each year up to 1932, and while at claimant’s home the evidence sustains the finding that he was furnished
“The law is well established that ‘where near relatives by blood or marriage reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or to pay compensation for the services rendered on the one hand, or for the board and lodging or other necessaries or comforts on the other; that they were intended as mutual acts of kindness done or furnished gratuitously.’ . . . Since the facts of this case bring it within the rule stated and give rise to the presumption of gratuitous services, it was incumbent upon the claimant to prove an express contract by direct and positive evidence or to prove by unequivocal facts and circumstances that which is the equivalent of direct and positive proof of an express contract.”
See also Estate of Skinner, 189 Wis. 390, 207 N. W. 942; Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252; Pellage v. Pellage, 32 Wis. 136; Tyler v. Burrington, 39 Wis. 376. The rule being well established, the question is whether the evidence in this case, which is not direct in its probative tendencies, furnishes sufficient circumstantial evidence of an express contract to pay. While an express promise must be shown, such a promise may be established by circumstantial evidence. Leitgabel v. Belt, supra. The testimony relied upon to create a jury question upon the point may profitably be reviewed.
The claimant testified that she expected to receive compensation for her services. Her husband- testified that some six months or a year after he had come to their home, deceased said, “Huida is awful good to me and I will see she gets her pay.” In the fall of 1933, deceased told claimant’s
We are unable to assent to this conclusion. In Tyler v. Burrington, supra, the court points out the necessity for preserving a careful distinction between an implied contract and an express contract. The court goes on to say:
“And mere expectation on his part to pay and on her part to receive wages, would not constitute an express contract, unless by mutual expression of the expectation it became consensual. Resting in the several minds of the parties, unexpressed to each other, independent and changeable, their expectations would tend rather to rebut than to establish an express contract. For upon contract expressly made, expectation would cease. In such cases expectation looks rather to an implied than an express contract.”
Such expressions as are here involved do not circumstantially establish that an express contract had previously been entered into between the parties. In Estate of Kessler, 87 Wis. 660, 59 N. W. 129, it is said that such expressions of expectation in connection with other testimony may give color to the latter and show that the expectations ripened into an express contract. It will be noted, however, that the Tyler Case expressly states, and the Kessler Case strongly
In view of these conclusions, it must be held that the evidence does not . sustain the verdict.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing plaintiff’s claim.