McClintic v. McClintic, 111 Iowa 615

McClintic v. McClintic

111 Iowa 615 | Iowa | 1900

Given, J.

2 3 I. There is no dispute but that the defendant made his home with his brother and the plaintiff during the years mentioned, and that he received the boarding, washing, ironing, and mending charged for; the work being done by the plaintiff, aided to some extent by her children as they grew to a helpful age. There is no question but that during those years the plaintiff’s sole occupation was that of a housewife in taking care of the home of her husband and family. She had no other or separate occupation, and was not engaged in keeping boarders, or in washing, ironing, and mending, as a separate occupation, nor did she furnish the supplies for the table at which the defendant boarded. The law is undisputed that the husband is entitled to the services and earnings of his wife when she is not engaged in business on her own account. Va Doren v. Marden, 48 Iowa, 186; Lyle v. Gray, 47 Iowa, 153. Primarily, plaintiff’s husband was entitled to this compensation, and it is only upon an agreement between plaintiff and the defendant, assented to by her husband, that she is entitled to recover this compensation.

The court, in taking the evidence and in submitting the case to the jury, proceeded upon the theory that if there was *619an agreement, express or implied, that the defendant should pay the plaintiff, she is entitled to recover, and of this the defendant complains. There is no allegation of any agreement, express or implied, as to this claim in the petition; it is a claim on account only.

Plaintiff cites cases to the effect, that items due on contract may be recovered in an action on account without alleging the contract, but that the rule will not apply if the recovery can only be had upon contract. The petition upon its face was sufficient if it were not for the facts alleged in the answer and appearing on the trial as to the circumstances in which the boarding, etc., were furnished. Therefore a motion for more specific statement would not lie against the petition.

4 The compensation being primarily due to the husband, the law will not imply an agreement to pay the wife, as would be the case between the defendant and the husband. Therefore the wife can only recover upon an express contract to pay her. A furnishes boarding and services to B. without an express contract. The law implies an agreement on the part of B. to pay to A., but does not imply an agreement to pay to O. As we view it, the plaintiff is only entitled tp recover this compensation on proving an express agreement upon the part of the defendant to make payment to her. Blaintiff insists that as defendant asked an instruction to the effect that the plaintiff could not recover unless the defendant made a special contract, he should not now be heard to complain that the case was tried upon the theory of an existing contract. The instructions asked were adapted to the prior rulings of the court in taking testimony, and were not such as to preclude the defendant from making the questions he now does against the rulings on evidence and in the instructions given. As the plaintiff can only recover upon alleging and showing an express agreement that this compensation was to be paid to her, and as no such allegation was made, we think the court- erred in submitting the question of contract to the jury. See Koehler v. Wilson, 40 Iowa, 183; Clark v. Reiniger, 66 Iowa, 507.

*6205 6 II. Tbe defendant was called as a witness in his own behalf, and, having testified that he lived in his brother’s family, was asked, “On what terms did yon live there?” To this the plaintiff objected as “immaterial, irrelevant, and because, under Code, section 4604, the witness is disqualified,” which objection was sustained. The purpose of this inquiry ‘was to show the co-partnership agreement as alleged in the defendant’s answer. Said section 4604 is> as follows: “No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, and no husband or wife of any such party or person shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, insane, or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person or the assignee or guardian of such insane person or lunatic.” Plaintiff fails to point out wherein this section is applicable to this case. The offered testimony was not in an action nor against either of the classes of persons contemplated in said section. It is by the plaintiff in her own personal right against the defendant upon his individual liability. . As said in argument: “The rights of neither depend on their legal relationship to Alexander W. McOlintic.” Plaintiff’s contention is “that if the defendant agreed to pay the plaintiff it is immaterial whether he had a contract with her husband to pay him for the same services.” Let this be conceded, yet, the contention being whether defendant had agreed to pay the plaintiff, evidence that he had agreed to pay her husband was certainly admissible upon this question. The argument assumes that defendant had agreed to pay the plaintiff, but, that being in issue, the offered evidence has a material bearing on that issue. It was for the jury to say whether there was an agree*621ment of co-partnership as alleged in the answer, and whether with such an agreement the defendant would also have agreed to pay the plaintiff. The value of what is claimed was also in issue. Therefore, if the defendant furnished half, or any part, of the provisions and fuel used in .the family, he should have been permitted to show that fact; for, even if he was obligated to pay the plaintiff, he should not pay her as much as if he had not furnished anything in the way of fuel and provisions. The offered evidence as to the settlement between the deceased and his brother should have been admitted as having a like bearing upon the issue as to whether defendant had agreed to pay the plaintiff. As for the reasons stated the judgment against defendant is reversed, and as the other errors assigned and argued are not likely to arise upon a new trial, they need not be considered. — Reversed.