95 Mo. App. 202 | Mo. Ct. App. | 1902
This is an action which originated in the probate court. The wife of the plaintiff was the sister of the deceased. The evidence adduced by the plaintiff tends to prove that the deceased was an unmarried man of considerable means, and that he had been making his home with his father and mother until after the mother’s death, which took place in 1885, after which occurrence he and his father concluded to break up. housekeeping. He then went to plaintiff and made that fact known and, at the same time inquiring of him (plaintiff) whether or not they could stay there, and to which inquiry plaintiff answered that they could, and thereupon the deceased replied that if they could do so he (the deceased) would make it all right with him. It is, in effect, conceded that the deceased made his home with plaintiff from February, 1885, until his death, which happened in January, 1889. It further seems from the evidence that the deceased kept, at the plaintiff’s residence, from two to four horses, during the time he made his home with plaintiff. The plaintiff’s evidence further tended to prove that the plaintiff’s wife, during the time the deceased lived with plaintiff, did his mending, washing, etc.
The plaintiff’s evidence tends to show that during that time the deceased did no work for plaintiff except some chores which he performed occasionally, when agreeable to him, but that of the defendant tends to show that he did considerable work at times, such
There was a trial in the circuit coart where the plaintiff had jndgment, and the defendant appealed.
I. The defendant objects that the trial coart erred in permitting the plaintiff to testify at the trial of the case. It appears from the record that James Benick a witness who had been called by the defendant, testified, in sabstance, that plaintiff had come to his (witness’s) hoase after the appointment of the defendant as administrator, and had stated to him that he did not intend to charge the deceased any board. The plaintiff in response to a qnestion asked him by his coansel as to whether or not he had made sach statement, testified that he had not. As the plaintiff’s testimony was in rebattal and related to á conversation which took place between him and the witness Benick after the appointment of the administrator, ander the stat-ate it was properly admitted. R. S. 1899, sec. 4652; Callahan v. Riggins, 43 Mo. App. 130; Stanton v. Ryan, 41 Mo. 510; McGlothlin v. Hemry, 59 Mo. 213; Martin v. Jones, 59 Mo. 187; Wade v. Hardy, 75 Mo. 394; Eyermann v. Piron, 151 Mo. loc. cit. 115.
II. The defendant farther objects that the coart erred in giving plaintiff’s first instruction, which told "“the jnry that when' one person renders valaable services for another person, the law makes the other person liable for whatever snm sach services are reasonably worth, and if yoa believe from the evidence in this case, that said Benick made his home with said
An implied contract is co-ordinate and commensurate with duty, and whenever it is certain that one ought to do a particular thing, as for example, to pay the worth of services requested by another, the law presumes the former to have promised that thing, or, in-other words, it creates a contract. And so it has been held that a promise by the employer is generally implied to make reasonable compensation for services rendered, unless there are circumstances which negative that implication. Thomas v. Coal Co., 43 Mo. App. 653; Lowe v. Sinklear, 27 Mo. 308; Hay v. Walker, 65 Mo. 17. In the last-cited case it was in substance said that, in. order to raise an implied contract to pay for services, it is not necessary that there shall have been an intention on the part of the one rendering the services during such services to charge therefor; it is sufficient that the one for whom the services is rendered expected to pay for it, and so, unless the, services were performed under circumstances justifying the belief that no charge was intended, a liability arose even though no charge was, in fact, intended by the one rendering the service during rendition thereof. Hay v. Walker, as far as we are able to discover, has never been criticised or overruled. The general rule to be extracted from the cases in this State
In the present case, there was evidence which tended to show that the services, the value of which the plaintiff seeks to recover, were rendered by the plaintiff at the request of the deceased. From these facts the law would imply a promise on the part of the deceased to pay the reasonable value of such services, unless there .were circumstances disclosed by the evidence negativing that implication.
The declarations and admissions made, if they were made, by the plaintiff, since the appointment of the defendant as administrator, that he did not intend to charge the deceased anything for the services, would have the effect to negative or rebut th,e implication. There was evidence of other facts and circumstances having a like effect. Besides this, if the jury found that the family relation existed between the parties as indicated by the instructions for the defendant,
The defendant loudly complains, as well he might, of the action of the circuit court in giving the following instruction for the plaintiff: ‘ ‘ Although you may believe from the evidence that some of the services charged for in the account were rendered said Renick by the wife of said Moore; still, the said Moore is entitled to compensation for all the services that said Renick received that are charged for, in the account; whether rendered by said Moore in person or by his. wife.” It seems to us that by this instruction the court told the jury, about as plainly as it well could, that plaintiff was entitled to recover for all the services rendered to the deceased, whether or not such service was performed in part by the plaintiff’s wife Owing to its peremptory character, in a case like this where the evidence is not only conflicting but so evenly balanced, it is utterly intolerable. But if this be not so, it should at least be condemned for ambiguity, and on account of which it was calculated to mislead the jury. ...
..No objection is seen to plaintiff’s fourth, when read in connection with the defendant’s sixth and seventh, for the three when taken together contain a complete expression of the law covering the issue to which they relate. Swofford v. Spratt, 93 Mo. App. 631, and the cases there cited.
III. The court very properly refused the defendant’s instruction number two, which told the jury that all the items of the plaintiff’s account which accrued five years before the commencement of the suit was
No sufficient reason is suggested why the defendant’s third was not properly refused. It was not within the limits of the issue. Wright v. Fonda, 44 Mo. App. 634.
Nor do we discover any ground for questioning the propriety of the action of the court in refusing the defendant’s fourth. Whether or not the deceased paid for the board of himself and horses, by work and labor performed for plaintiff, is not an issue made by the pleadings. The answer was a general denial coupled with a simple plea of paymént. A payment other than in money must necessarily rest on an independent agreement, and where the action is commenced in a court of record, as here, where formal pleadings are required, such an agreement can not be shown under a general denial or simple plea of payment, but the substantive facts of the agreement must be pleaded. Rider v. Culp, 68 Mo. App. loc. cit. 531.
The court properly refused the defendant’s fifth instruction, by which the court was requested to tell the jury that if during the time plaintiff’s account accrued, he was indebted to the deceased and he paid the said deceased such indebtedness, then upon such payment there was in law a presumption of fact from which the jury were authorized to infer (presume) that all of the items of indebtedness between plaintiff and deceased at that time were finally settled. A presump
On account of the error in the giving of the plaintiff’s second instruction, the judgment must be reversed and the cause remanded.
