109 Wash. 672 | Wash. | 1920
By this action appellants, plaintiffs below, sought to recover of the respondent compensation for the maintenance and care of Charles R. Turner, the son of the respondent. On December 12, 1911, the appellants and respondent and his wife, since deceased, were neighbors, residing in the state of Washington. Mrs. Turner and Mrs. Hendryx were devoted sisters. On the day above mentioned, the child Charles R. Turner was horn by Mrs. Turner, who died within two or three hours thereafter. Mrs. Hendryx was present at the birth and the death. At that time the respondent, father of the child, requested the appellants to take the child and care for him, which the appellants at once proceeded to do. They kept the child until January, 1918. Shortly prior to that time the respondent, who had remarried, desired, and demanded of the appellants, the possession and custody of the child, but the appellants refused to surrender him. They contended that there was an express agreement between them and the respondent, made at the
After the child was taken from them by virtue of the decree of the Oregon supreme court, appellants instituted this action in this state for the purpose of getting compensation for their services and expenses incurred. Their complaint alleged that appellants, on December 12, 1911, at the special instance and request of the respondent, took the child into their possession and continued thereafter to care for, maintain and support him until the 12th day of January, 1918. The third paragraph of the complaint alleged that “defendant agreed to pay to plaintiffs for their said work, labor and services as aforesaid the reasonable value thereof.” The reasonable value was alleged to be $2,735. The answer denied most of the material alie
The trial court seems to have granted the nonsuit on two grounds; first, that the testimony showed that the parties to this action were related and were of one family, and therefore the law would not imply any agreement to pay compensation; and second, because the complaint was rested upon an express contract to pay, and, since there was no testimony in support of an express contract, there could be no recovery.
“It is a rule universally recognized that, when the services .are rendered by one who is a member of the family of the employer, the law will not imply a contract to pay for the services from the mere fact that they have been rendered upon the one hand and benefits thereof received upon the other, as in the case of strangers. This is also held to be the rule when there is no actual blood relationship existing between the parties, provided they sustain to each other the ordinary relations of members of the same family.”
The testimony in this case is clearly insufficient to authorize any recovery based upon an express agreement, and if appellants recover at all they must do so upon an implied agreement. The respondent contends that the relationship of the parties to this action is such as to bring them within the exception to the general rule as recognized by the authorities above cited, and for that reason the appellants cannot recover on the theory of an implied contract. We cannot agree with the respondent’s contention in this regard. There i§ no blood relationship between either of the appellants and respondent. They did not live together as one family, but, on the contrary, there was an entire absence of family relationship. If this had been a controversy between the appellants and the child in question, whereby the appellants sought to recover of the child compensation for their care and custody of him, or whereby the child had sought to recover of appellants compensation for his services rendered to them, a very different question would arise. All, or practically all, of the cases cited by respondent are cases of the character supposed. The case of Wyley v. Bull, 41 Kan. 206, 20 Pac. 855, was one where the plaintiff, a minor, but not a relative of defendant, residing with the defendant as his son and as one of his family, sought to recover compensation for his services. The case of Price v. Price’s Ex’r, 19 Ky. Law 211, 39 S. W. 429, was one where a sister sought to recover compensation from the estate of her deceased brother for services rendered by her. The case of James v. Gillen, 3 Ind. App. 472, 30 N. E. 7, was one where a niece entered the family of the decedent and there lived with
The respondent further -insists that appellants’ action is- based upon express contract, and for that reason there cannot be any recovery on implied contract. While there are some expressions in the complaint that would tend to indicate that it was the intention to plead an express contract, yet, taking that instrument as a whole, we are satisfied that it was the intention to rely upon an implied contract. The complaint alleged, in substance, that the appellants performed the services at the special instance and request of the respondent and that the reasonable value of such services was a certain sum. These are the usual allegations contained in a complaint based upon quantum meruit. The allegation to the effect that respondent agreed to pay such reasonable compensation is nothing more than a conclusion of law, and, of course, surplusage.
At page 587, 6 R. C. L., we find the following:
“It is said that the only difference between an express contract and an implied contract is that in the former all the terms and conditions are expressed between the parties, while in the latter some one or more of the terms and conditions are implied by law from the conduct of the parties.”
The following rule is laid down in 23 Am. & Eng. Ency. (2d ed.), 531:
*678 “Where a person employs another to do work for him, without any agreement as to compensation, the law implies a promise to pay for the services as much
The respondent contends that, even if the complaint is based upon an implied contract, the testimony negatives any implied promise to pay. In discussing this feature of the case, it is necessary to remember that appellants testified that, up to the time the child was taken away from them, they had no intention of making any charge, and that at no time had there been any talk concerning compensation, because appellants always considered the child to be their own. But the supreme court of Oregon, in the habeas corpus case cited, held, in substance, that the child did not belong to the appellants, and that there never was any legal or binding contract between appellants and respondent whereby the latter legally surrendered his child to the former. We must, therefore, eliminate from this case, as inapplicable thereto, the appellants’ testimony to the effect that they were given the child. With this testimony eliminated, we have nothing left but the bare fact that appellants have cared for the child all these years at the request of respondent. Based upon that testimony, the law will imply a promise on the part of respondent to pay the reasonable value of such services.
Holcomb, C. J., Tolman, Fullerton, and Mount, JJ., concur.