142 Iowa 691 | Iowa | 1909
The deceased was the owner of eighty acres of land, and, as he had attained the age of eighty-two years, required assistance in farming this land for five or six years prior to his death. At different times the claimant, a stepson, who resided several miles distant, with the assistance of his minor sons and employees, had put in the crop, harvested it and the hay, cut up his corn, cut and hauled his firewood, and carried to him feed for his chickens and corn meal for his table. On several occasions, upon completion of work, he was shown to have said to claimant that, though then without money, he should he paid sometime. No word or act of claimant prior to the decedent’s death indicated an intention that the services should be gratuitious. There was evidence of the
Prior to the enactment of section 3340 of the Code, probably, it was not necessary to plead special defenses. Benton County Sav. Bank v. Strand, 106 Iowa, 606. But the statute now expressly provides that “special defenses must be pleaded,” and the only remaining inquiry is whether this was a special defense. In Scott v. Morse, 54 Iowa, 732, the court held that an agreement to render legal services without remuneration, to' be available as a defense, must be specially pleaded, and the decision has been cited since with approval. Gary v. Association, 87 Iowa, 25; Morning v. Long, 109 Iowa, 290; Schroeder v. Schroeder, 119 Iowa, 68. Section 3629 of the Code declares that “any defense showing that a contract, written or oral, or any instrument sued on, is void or voidable or that the instrument was delivered to a person as an escrow, or showing matter of justification, excuse, discharge or release, and any defense which admits the facts of the adverse pleading, but by some other matters seeks to avoid their legal effect, must be specially pleaded.” It was asserted in the claim that the services had been rendered at the request of deceased, and the value thereof was stated.
As it was not so pleaded, the order rejecting the claim was based on an issue not raised, and must be reversed. ■