45 P. 759 | Or. | 1896
Opinion by
The notice of appeal contains two assignments of error, but the one relied upon, and the only one urged at the hearing, arises upon the following instruction: “If this plaintiff entered upon this work which he claims to have entered upon, and engaged in it, and Holladay knew of it, and was further notified that the plaintiff expected compensation of some kind for it, and Holladay made no objection to it, but allowed the plaintiff to proceed, then there would be an implied promise to pay for the work what it was reasonably worth. But whether there is any such fact in this case is for the jury to judge.” It is predicated of this instruction that it assumes the existence of some evidence before the jury upon each of the following propositions: First, that Holladay knew plaintiff was performing services for him; second, that he was notified by plaintiff that he was performing services; third, that he was also notified that the plaintiff expected compensation of some kind for it; and, fourth, that, after being notified, he made no objection, but allowed plaintiff to proceed with his work. The contention is that there was no evidence whatever upon either or any of these propositions, and hence that it was
The defendant’s contention at the trial seems to have been that because of plaintiff’s age; having been born in eighteen hundred and thirteen, he was feeble and decrepit, and unable to work or perform manual labor to any considerable extent, but, having formerly been of service to -his brother, Ben Holladay, he (defendant) allowed him to remain on his place and make it his home, and furnished him board and lodging as a matter of charity, but with the distinct understanding that he was to receive no wages for any light services that he might render about the place. Prior to the commencement of the term for which plaintiff claims wages, he had worked upon the premises, and received compensation therefor through the receiver of Ben Holladay’s estate. The defendant became the owner of the premises about July tenth, eighteen hundred and eighty-nine, and for the purpose, as he says, of cutting down expenses, he notified the plaintiff both verbally and in writing that he could not afford to pay him any wages for work he might do on the place, but that if he (plaintiff) wished to remain on the farm, he (defendant) would not make any charge for board or room rent. Such a notification would imply that there had been a previous service for which a liability for wages had been incurred,
The plaintiff testified, among other things: “Joseph Holladay * * * would come down every summer and stay two or three months.” Of this there was some corroboration. Further on he says: “I did not get any wages, because I was not paid it. I claimed my wages then as well as any other man that worked there.” Question — “When did you make a claim for your wages in eighteen hun
Upon the third proposition, the plaintiff- says directly: “I claim my wages then (in eighteen hundred and eighty-nine) as well as any other man that worked there.” While it is problematical, in the light of other testimony, as to just what he meant by this expression, or whether or not the effect of it is entirely destroyed by his other utterances conflicting therewith, there is here matter of evidence for the jury, and it must be admitted that, as touching the fourth proposition, there is evidence tending to its support. So that there was some competent evidence before the jury upon each of the propositions from which they might find the existence of all the facts inferentially comprehended by the instruction. It is insisted that before the defendant could be made liable for the services of plaintiff, they must have been performed at his request, or he must have promised to pay for them after knowledge thereof: Glenn v. Savage, 14 Or. 577 (13 Pac. 442). No recovery can be had for an act done for the benefit of another as a voluntary courtesy, and without his request. This is the doctrine announced in the case just cited, which is not only sound law, but is in consonance with good morals. But the law will imply a request on proof of cer
If, in this case, the alleged agreement set up by way of a separate defense had been proven, there could be no possible ground for implying a promise on the part of defendant to pay plaintiff any wages. This was a question properly for the jury to pass upon. However, it was incumbent upon the plaintiff in the first instance to show that he was entitled to wages, either by reason of an express agreement or promise, or of facts and circumstances from which the law will imply a request, which will raise a prom