| Pa. | Oct 4, 1886
delivered the opinion of the court,
It is a most familiar rule of the law, that where services are rendered by one person for another, at his request, a promise will be implied to pay the price ; but this implication may be rebutted by proof of such a relation existing between the parties as repels the idea of a contract.
Therefore, a daughter cannot recover wages for services rendered, in the nursing and care of her father, except on clear proof of an express contract to that effect. The same rule obtains, when the daughter is an adult and married. Although after marriage her services belong to her husband, yet if the wife under the circumstances owing to the absence of an express contract, might not recover, the husband can have no higher right: Houch v. Houch, 3 Out., 552.
It is plain that Rebecca J. Patton never had, or pretended to have, any claim for services against her father’s estate, for no express contract to that effect is even alleged. In the care and nursing of her father, she doubtless rendered efficient and faithful service, but, in so doing, she simply performed a daughter’s duty; a duty to the performance of which she was prompted by the affection which was due to her father. It is equally plain, that her husband never set up any such claim, either in his own interest, or in behalf of his wife, and if he had, the law would have denied him any remedy for its recovery.
The agreement, in reference to the five hundred dollars, was made after Robert Patterson’s death, between the other children and heirs of the deceased; they agreed they would give to their sister, Rebecca, five hundred dollars. They owed her nothing; she said she thought she ought to have something, for taking care of her father, and they said they would give her five hundred dollars. Her husband took credit for this amount of money in the settlement of his account, as administrator; the credit was not claimed, nor allowed, as a debt due to him, or to his wife, from the estate of Robert Patterson ; it would appear rather, to have been in the nature o.f a gift to her by her sisters, which by agreement was executed in the settlement and distribution of the estate. It was “ for taking care of her father,” but it was nevertheless a voluntary gift;
It is a matter of no consequence that the husband, through the advice of counsel, was induced to believe the money was his ; that did not change the ownership of the money.
As a general rule, the husband is entitled to receive for his wife’s services, but when those services are gratuitously rendered he has no such right; if she is afterwards rewarded by a voluntary gift, her husband can have no more claim to it, than a stranger.
Thomas T. Patton, having under these circumstances received his wife’s rnonej^ was legally bound for its restoration to her. The law held him liable to her for payment thereof, and it was competent for him to secure it to her in the note which he gave for her use.
The mill, it is admitted, belonged to Rebecca J. Patton and her two sisters by inheritance from their father, as tenants in common, they were therefore entitled to the proceeds. If Thomas T. Patton received his wife’s share of the proceeds, it was his duty to account to her for that share; the only question for the jury, in respect to this item, is whether or not he received any part of her share of the proceeds, and if so, how much he did receive.
The judgment is reversed and a venire facias de novo awarded.