Hollister v. Kinyon's Estate
161 N.W. 962
Mich.
1917
Check Treatment
Ostrander, J.

(after stating the facts). The case for the claimant as it was made is, in essentials, not unlike the one stated in Corel v. Turner, 74 Mich. 408 (41 N. W. 1091). It does not appear that claimant, a man more than 70 years old when this case was tried, had a home or family of his own. He attached himself, by permission or by invitation, to the family of the deceased in 1894, and, whatever the relations were, they continued until 1914 — more than 20 years. During that period claimant performed services for the deceased, and during that period he lived in his family, receiving board, lodging, and washing. From *266time to time, at least, claimant followed his business of driving wells. He. was not always at the Kinyon place. No bargain was made, and he asked for no pay other than his board, etc. There was no promise to pay him. After the death of Mr. Kinyon, claimant presented an account of more than $3,800 against his estate, about $3,700 of it for his unrequited services. As to his services, he seeks a recovery upon the ground that they were worth more than Kinyon paid for them. No account was kept of them; no mutual account of the parties is exhibited. Impliedly, claimant says, impliedly Kinyon agreed to pay him for his services what they were reasonably worth. He paid him only a part, and has owed him all of the time at least 50 cents a day more than he paid him for each day that he served him.

A jury- has given him $2,000, not the amount he claimed, not the result of the application of any discoverable theory. It is obvious that improper advice was given to the jury which may have resulted in prejudice to the estate.

The case for plaintiff was met by the assertion and proof that, when claimant began to serve the deceased, an express agreement for his services was made, by the terms of which he was to receive only his board, etc., as payment. Reading all of the charge, I am convinced that the court did not intend to say to the jury, in stating the claims of the parties, that the contract relied upon by the estate was not established ■ — did not then refer to that alleged contract, although literally that was the statement, no other contract having been asserted. Other and later portions of the charge act, I think, as a correction of this statement and indicate that the court was referring to the claim made and theory of the claimant. Assuming, although the testimony concerning this agreement was undisputed, and was fairly corroborated by the *267course of events, that whether it was made was a question for the jury, it is impossible to determine how the question was answered, or whether the jury agreed to answer it one way or the other. Because they were instructed, in effect, that if it was made and claimant after a while performed more considerable services, or services of more value, than at first, they might disregard the alleged express agreement and determine what the services he performed were really worth. This is the effect of the instruction, because there is no evidence tending to prove that Kinyon regarded the services as of more value at one time than at another. The right of the estate was made to rest, finally, upon whether the jury found:

“That his duties and labors changed and became greater, and that they were done and received by Mr. Kinyon with the expectation that they were of more value than before and of more value than the board and lodging, if you shall find they were of more value than the board and lodging, then he can recover, etc.”

The generál character of claimant’s services did not change. He was, in fact, paid for all the time in accordance with the alleged agreement. When an exr press contract covers the terms of an employment, there is no room for implications which change, or defeat, those terms. Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547). For a case in which the rule does not apply, see Middlebrook v. Slocum, 152 Mich. 286 (116 N. W. 422). There is no testimony tending to prove that either party to the alleged agreement ever agreed upon a modification of its terms, or that a new or further agreement was made. There is no evidence tending to prove that claimant ever considered a modification of the alleged agreement. It is said that the alleged express agreement was for no specified period of service beyond the first winter that claimant lived with Kinyon. Granting this, there is, as I have said, *268no evidence of any change in the general character of the relations established by the agreement, if it was made. Claimant stayed on in the general capacity in which he began. It must be remembered that claimant is not pointing out particular days, or weeks, when he did particular work more or less than by the alleged contract he was to do. He gives no credit for days when he was employed about his own affairs. He asserts a continuous and general rendering of services from the beginning, stating the number of weeks of service as 1,056 and the value per week at $3.50, which is 50 cents a day. The qualification introduced into the charge of the court should have been omitted.

I am not prepared to hold that the evidence of the express contract required the court to instruct the jury that it was established, and therefore to direct a verdict for the estate. No witness contradicted the witness who testified to the agreement, and a course of dealing for 20 years corroborates his testimony. The testimony is, however, so conclusive that a finding that the agreement was not made ought to be set aside as against the weight of evidence.

The statute of limitations, while it could not, without a framing of issues, have been pleaded in the court below, was a ground of defense which the estate might have asserted in the trial court. McGee v. McDonald’s Estate, 66 Mich. 628 (33 N. W. 737); McHugh v. Dowd’s Estate, 86 Mich. 412 (49 N. W. 216); Conger v. Hall, 158 Mich. 447 (122 N. W. 1073). This is a court of errors, and while the statute, 3 Comp. Laws, § 9375 (3 Comp. Laws 1915, § 13872), and decisions of this court, are to the effect that commissioners on claims cannot waive the operation of the statute, it is also true that questions not opened in the trial court are not to be first presented in this court. The reasons for this rule, while not so obvious in this case *269as in some which may be supposed, are nevertheless controlling here.

It is not necessary to consider whether the motion for a new trial ought to have been granted, since for the reasons stated the judgment must be reversed, and a new trial granted.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.