Olson v. Olson

149 Wis. 248 | Wis. | 1912

Timliw, J.

Tbe respondent, after be reached tbe age of twenty-one years, worked for bis father, tbe decedent, on tbe farm of tbe latter at intervals during tbe years from 1889 until about April 1, 1905. ."While so engaged and on or about tbe date last mentioned, according to tbe testimony of a girl then temporarily in tbe family, in a talk between Ma/rtin and bis father “about work and some other things,” Martin said to bis father that be, Martin, bad remained at home more than tbe other members of tbe family, whereupon bis father said be would give Martin $1,000 for tbe work be bad done and $20 per month for future work. Martin said: “All right,” and that ended tbe conversation. Martin thereafter continued to work for bis father until tbe death of tbe latter on October 3,1906. Martin filed bis claim against tbe estate of bis father; and upon tbe foregoing evidence relative to tbe contract and other evidence showing tbe nature and extent of tbe services performed, upon appeal to tbe circuit court, a jury in that court found a verdict for respondent and fixed tbe amount of bis recovery at $1,374.50.

Tbe trial court instructed tbe jury to tbe effect that there could be no recovery for this $1,000 for past services if that part of tbe agreement was distinct or separate, but that in order to entitle respondent to recover this $1,000 tbe jury must be convinced that tbe promise on tbe part of tbe father, if be made one, to pay tbe respondent $1,000 for past services, was a part of the same agreement by which be promised to pay $20 per month for future services, and that it was in consideration of such entire contract that tbe respondent agreed to and did remain and perform services after tbe conversation testified to. There are some slight inaccuracies in tbe instructions, but they are substantially as stated.

Tbe evidence to tbe effect that Mm'tin worked for bis father after reaching bis majority is ample, but that relating to tbe agreement is quite weak. Still we must beep in mind that Martin was disqualified from testifying to tbe agreement and the other members of the family would naturally be adverse tó his claim, and that the only witness available to him was endeavoring to narrate a conversation overheard by her several years before. Formal expressions are rarely used in such transactions between father and son, and that such agreement was made is not inherently improbable. The conversation narrated will' fairly bear the inference drawn by the jury, although no formal expression found therein covers such case with precision. There is only one version of the contract given and that is not very clear or satisfactory, except to the effect that some kind of a promise was made. The question whether the parties intended and understood that Martin should remain in consideration of that part of the promise relating to the future wages of $20 per month and that he did so remain or understood that he should remain and did remain in consideration of the two things said by the decedent by way of promise in this conversation, was, we think, fairly for the jury. It was a matter of inference from the words used, the final assent of Martin at the close of the conversation, and the subsequent act of Martin in remaining until his father’s death. This court will not disturb a verdict on the ground that it is contrary to evidence where the trial court has refused to set aside the verdict and there is credible evidence to support such verdict (Plano Mfg. Co. v. Frawley, 68 Wis. 577, 32 N. W. 768; Schrubbe v. Connell, 69 Wis. 476, 34 N. W. 503) ; and where the evidence is such as to justify either of two inferences, the decision of the trial court must control on appeal. Spuhr v. Cobb, 111 Wis. 119, 86 N. W. 562. This applies to verdicts with even greater force.

With reference to the law of the case: If by the transaction in question, consisting of the oral conversation testified to and the subsequent acts of the parties, a new contract was created whereby the respondent agreed to continue to work for his father in consideration that the latter should pay him $1,000 for past services and $20 per month for future services, and this was performed on the part of respondent by continuing to work for his father until the death of the latter, the ease falls within the rule of Loomis v. Newhall, 15 Pick. 159; Irwin v. Locke, 20 Colo. 148, 36 Pac. 898; Roberts v. Griswold, 35 Vt. 496; and Graham v. Stanton, 177 Mass. 321, 58 N. E. 1023. See, also, Wolford v. Powers, 85 Ind. 294, and Trimble v. Rudy (22 Ky. Law Rep. 1406, 60 S. W. 650) 53 L. R. A. 353 and cases in note. There is in such case a valid consideration to uphold the whole contract.

By the Court. — The judgment of the circuit court is affirmed.