46 Mo. App. 496 | Mo. Ct. App. | 1891
At the December term, 1889, the plaintiff presented to the probate court of Cooper county, for allowance against the estate of Joseph Hickam, deceased, the following account :
“ The Estate of Joseph Hickam, deceased, To Eda Hickam (colored), Dr.:
“ To services rendered by said Eda Hickam for the said Joseph Hickam as house and general servant from the eighteenth day of February, 1865, to the twenty-third day of February, 1889, being twenty-four years and five days, at the rate of $5 per month, amounting in the aggregate to the sum of $1,440.85.”
The case was tried before a jury in the probate court, and judgment rendered for the plaintiff for $785.29, from which the defendant appealed to the circuit court of Cooper county, where a trial was had before a jury, resulting in a verdict for the defendant, whereupon the plaintiff sued out her writ of error, and brought the case to this court. We make the following-brief statement of the facts as set out in counsel’s brief upon which plaintiff’s demand is based :
Prior to the Civil War and up to the date of the emancipation of slaves in Missouri, the plaintiff was the property of Joseph Hickam, now deceased, who lived in Moniteau county, Missouri, from whence he removed to Cooper county, where he died in the year 1889. At the time of the abolition of slavery in Missouri the plaintiff was about twenty-three years old. From childhood she had been the slave of said Joseph Hickam; had no education, and had had very little intercourse with anyone outside of the family of her
At the trial in the circuit court, plaintiff asked several instructions, all of .which were refused. Among these so refused was the following: “1., If the jury believe from the evidence that prior to the emancipation óf slaves in the state of Missouri, to-wit, the -fourth day of July, 1865, the plaintiff was the slave of Joseph Hickam, deceased, and that after said date the plaintiff continued to live with the said Joseph Hickam, and worked for him and his family until the date of his death, to-wit, the twenty-third day of February, 1889; that during all that time she was prevented from associating with people of her color, and was kept in ignorance of the fact that the negroes had been freed, and
Of the instructions given by the court at the request of the defendant, we call attention to the following: “3. The jury are instructed that there is no evidence in this case that there was an express contract between the plaintiff and Joseph Hickam for the payment of wages to her, and the sole and only issue submitted to the jury is whether or not there was any implied contract between the plaintiff and said Joseph Hickam. And although the jury may believe that the plaintiff continued to live with the said Joseph Hickam after she became free, and she rendered valuable and meritorious services', still, unless they further believe from the evidence that at the time she rendered the services she expected to charge wages therefor, and the said Joseph Hickam knew that she intended to make said charge, there can be no recovery in this case.
“ 4. The «jury are instructed that even though they may believe that the plaintiff continued, to live with and work in the family of the said Joseph Hickam after the legal emancipation of the slaves, and after she became free, and that she did this in ignorance of the enactment of the law making her a free woman, still this will not authorize a recovery against the said Joseph Hickam’s estate in this case if the services were rendered without expectation upon her part of receiving wages therefor, and without the intention on his part of paying therefor.
“6. The jury are instructed that the plaintiff cannot recover for any services rendered more, than five years prior to the death of the said Joseph Hickam, as the right to recover for any services rendered more than five years prior to his death is barred by the statute of limitations.”
I. It will be seen by a comparison of plaintiff’s refused instruction with the instruction given for defendant, that the trial court declined to adopt the theory that if the negro girl, Eda¡, was induced by the fraudulent concealment of her rights by the said Joseph Hickam to labor for his benefit without pay, that then she ought to recover the value of such services; but held that the plaintiff. could not recover, however valuable the services may have been, unless “the jury should believe from the evidence that at the time she was rendering said services she intended to charge Joseph Hickam therefor, and that the said Joseph Hickam understood at the time said services, were being rendered .that she expected to make said charge,” etc. In other words, the jury was advised that, even admitting the
, We do not understand this to be the law in this character of case.' An implied promise does not always depend upon the existence of intention in fact of the one to pay and the other to receive. The law frequently affixes a promise to pay even contrary to actual intention. As well expressed by an eminent author: “The law implies from men’s conduct and actions contracts and promises as forcible and binding as those made by express words, and such contracts are implied sometimes in furtherance of the intention, or presumed intention, of the parties, and sometimes in furtherance of jicstice without regard to the intention of the ;parties. Thus a promise to pay for services rendered, or for goods received, or money obtained, will be implied against the wrongdoer who never intended to pay or intended deceptively to avoid payment.” 3. Add. on Cont., sec. 1399 ; 1 Hilliard on Contracts, sec. 20, p. 65.
This same doctrine found practical application in an early decision by our supreme court. Higgins v. Breen, Adm'r, 9 Mo. 497. McNally left his wife in a foreign country, came here and solicited the plaintiff, Rosaline Higgins, to marry him ; she consented and was married to him, trusting to McNally’s false and fraudulent representations that he was single. It was only after the death of McNally that the plaintiff became informed of the truth. She then sued the estate for the value of her services as housekeeper for McNally during the time she had lived with him, and she was allowed to recover, although, of course, while
The authorities cited by defendant do not militate against the position here announced. The case of Callahan v. Riggins, 43 Mo. App. 130, is one of the series in the appellate courts of this state denying the right of a near relative and member of the family to compensation for labor done while a member of the family, unless there was at the time an expectation of the one to give, and the other to receive, pay for such services. It is there held that the ordinary presumption of an agreement to pay for valuable services rendered does not obtain where the parties occupy a family relation. These cases are taken out of the general rule, and have no bearing on the question here.
In Maltby v. Harwood, 12 Barb. 473, and other cases relied on by defendant’s counsel, both parties were acting under a mistake. “ They alike,” says the court in Maltby v. Harwood, '‘thought the plaintiff was bound as an apprentice.” It was held there that no implied obligation to pay arose. It is said there, however, that a different rule would hold if the plaintiff had been compelled to perform the labor for defendants. I take it the court in the Maltby case would have held the defendant liable on a showing that he had secured the services of the plaintiff by falsely and knowingly representing and inducing the plaintiff to believe that he,
II. But it is suggested by defendant’s counsel that the ignorance, on account of which plaintiff seeks relief, is that of law and not of fact, and hence, underlie well-known maxim, Ignorant-La, legis neminem, excusat, she cannot complain of the .deception alleged to have been practiced by Joseph Hickam. Generally, .it is true, a misrepresentation of the law affords no ground of redress ; the misrepresentation should relate to a question of fact. However, this harsh and arbitrary rule is not without its exception. All men are not always presumed to know the law. Misrepresentation of the law is sometimes binding on the party who makes it. This is true in transactions between parties occupying fiduciary and confidential relations. ‘ ‘ Indeed, ” it is said, “where one who has had superior means of information professes a knowledge of the law, and thereby obtains an unconscionable advantage of another who is ignorant, and has not been in a situation to become informed, the injured party is entitled to relief as well as if the misrepresentation had been' concerning matter of fact. Bigelow on Fraud, 488, and cases cited ; Moreland v. Atchison, 19 Tex. 311. The right to relief seems to be admitted, where “a party should intentionally deceive another by misrepresenting the law to him, or, knowing him to be ignorant of it, should thereby knowingly take advantage of his ignorance for the purpose of deceiving him.” Abbott v. Treat, 78 Me. 126. Says Judge Napton, in Faust, Adm'r, v. Burner, 30 Mo. at p. 420: “There may have been gross ignorance and imbecility on one side and a perfect knowledge of the fact and the law on the other; there may have been imposition or undue influence; there may have been circumstances from which the jury might infer fraud,” and, therefore, he concluded that the plaintiff in the action might, on a new trial, recover.'
III. We conclude, then, that the case in hand should have been submitted to the jury on the theory outlined in plaintiff’s first instruction, and that the defendant’s instructions (which were given and numbered 3, 4 and 5 ) incorrectly declared the law of this case, and should not have been given. We do not mean, however, to sanction the particular wording of plaintiff ’ s first instruction. At another trial counsel should avoid calling attention to particular portions of the evidence, and thereby giving undue prominence to certain isolated testimony. Further, we must say that, in our opinion,
IY. The trial court erred also in declaring to the jury that plaintiff could only recover, if at all, for the last five years’ service. If she has any cause of action, it is for the whole term. Her claim is an entirety, good as to the whole, or bad as to the whole. The cause of action, if any there is, accrued on the discovery of the fraud in 1889. R. S. 1P89, sec. 6775.
The judgment will be reversed, and the cause remanded for a new trial.