190 Iowa 765 | Iowa | 1921
On the other hand, appellant says that the testimony warranted a finding by the jury that the services were rendered by claimant with the intention of charging for them, and were accepted by deceased with the intention of paying therefor. They contend that mutual expectation may be shown by circumstantial evidence, as well as by direct (citing Snyder v. Nixon, supra, Sheldon v. Thornburg, 153 Iowa 622, In re Estate of Oldfield,
Appellant claims that, during the last 15 years of the mother’s life, claimant devoted himself entirely to her care, in caring for her interests, and that he gave up his own independent farming during that 15 years, which circumstance strongly imports an inference of mutual expectation of payment; and that the services were so extraordinary as to compel the inference that the parties must have had a mutual expectation of payment; that, where a son or daughter has left home, and returned when the parents are no longer able to care for themselves, it affords a strong circumstance in support of mutual expectation of payment. Marietta v. Marietta, 90 Iowa 201.
We said, in McGravy v. Roods, 73 Iowa 363, 366, that, where the family relation exists, a promise to pay cannot be implied because the services were performed by one and accepted by the other, as would be the case if such relation did not exist; but that the claimant must go a step further, and establish that there was an expectation by both parties that compensation should be paid; and that it is not essential that the amount of the compensation should be agreed upon. This, we take it, is upon the theory that, the above facts being established, the law im
We shall not review the cases, but proceed to the general history of the case and the parties, and a brief summary of the evidence of claimant bearing upon the questions presented. As to some of the facts, there is no dispute. There is a conflict at other points. It is conceded by appellant that the evidence does not show an express agreement that he should be paid for his services, and it cannot, we think, be justly claimed that he was not a member of the family at the time the services claimed for were performed. The evidence tends to show that deceased died intestate about December 13 or 14, 1915, at the age of about 78 years; that she died as the result of a stroke of apoplexy. Claimant is about 65 years of age. He never married. At the time of his father’s death, in 1881, he was about 26 years old; Andrew was 17; there were two other brothers between; and the mothers of interveners were then about 9 and 7 years of age. They died 17 or 18 years before the trial. The father died intestate in 1881, leaving the mother and six children, and an 80-acre farm, about one third of it, under cultivation. Part of the land was wet and swampy. The mother and children continued to live on the farm as a family until her death, except as, one by one, they married, or established homes elsewhere. At the time of his mother’s death, and for several years prior thereto, only she and plaintiff of the family were left. The 80-acre farm was not partitioned until after the mother’s death. Though the 80 acres belonged to the father, none of the heirs disturbed the mother’s possession, and it does not appear that she paid rent to the heirs for the use of their undivided interests. There was no administration upon the father’s estate, which was small. The property on hand and the crops were disposed of, from time to time, and, after a few years, the mortgage on the land was paid off, and the place improved with barns, etc. Plaintiff and some of the other boys had worked away from home for some years before the father’s death, and at that date, plaintiff and one of the others had become the owners of a 160-acre farm and a threshing outfit, both of which they continued to operate for some years. Andrew continued to live at home about 16
"I am a Methodist preacher; was in charge of the church at Sheldahl twice, first in the fall of 1903; stayed there three years; knew deceased; she was a member of my church; got acquainted with her a month or two after I went there. She was then able to get around the house a little, but not outside. She was at church twice in three years. I was at her house during the first period of my pastorate. The first time, she could get around fairly well. She walked with difficulty; told me she could not often come out; said her health would not permit her to come. Second pastorate began in 1913. Deceased was more feeble; did not get to church during my second pastorate. She was one of the oldest members of the church at Sheldahl. She had broken her leg, which made it worse for her. Had three different talks with her concerning her business affairs, during the second pastorate. I stated to her that, in her feeble condition, she ought to get some woman to take care of her household work, and relieve her. Then she told me again, three times about the same, that Lewis would do for her more than any girls; that she would not have a girl around the house, because Lewis would do the work: and at the end of it, she said about this way, ‘Will have to see that he is paid for it.’ She said that on three occasions; that he helped her so she didn’t need to do any hard work. She said that Lewis had sacrificed what the other children had in their homes, and how much she thought of him for that; that he gave up his chance of going out and establishing anything for himself, because he stayed right home and worked for her. Some of her friends thought it would be advisable for me to talk to her about her getting someone to do her work. The ladies of the church told me she was so feeble that I ought to suggest it to her, and I did so. That was in the forepart of October, 1913. She stated, ‘We will have to see he is paid for it.’ She was an intelligent woman, talked fairly good English, but would rather talk in Swedish, and we did, all the time. I did not hear her talking with her own children in English; she did with other people.”
A neighbor, Mrs..Neuman, says she went over to the Soderlands about once a month.
It is true enough, as contended by appellee, and conceded by appellant, that the declarations of deceased just referred to, standing alone, would not be sufficient. Appellee relies strongly on Donovan v. Driscoll, supra, in which case there are two or three similar declarations, and the court said that this constituted the entire evidence in support of the proposition that the father ever agreed or expected to pay plaintiff wages, etc. It was held that it was not sufficient. In that case, too, there was a will, making provision for the claimant, and the court said that it was not inconsistent to say that payment for services were so made. In the Squire case, supra, also relied upon by appellees, the claimant admitted that she had no intention of charging for her services, until after the death of decedent. It is often difficult to put one’s finger on one particular circumstance, and say that such is, of itself, sufficient. All the circumstances must be considered. In so considering the matter, we are convinced that the evidence was sufficient to take the case to the jury, and for the jury to say whether or not plaintiff was entitled to recover in some amount, after taking into consideration the greater service by plaintiff in the later years, the assistance rendered deceased by others, and all other circumstances, and to make allowances therefor. We are not determining whether he shall recover, nor in what amount. We are not unmindful of the fact
It is doubtless true, as we understand appellees to contend, that the presumption that service rendered as a member of the family is gratuitous, is based upon reciprocal duties and service from one to the other. Ordinarily, a father and son, or a mother and son or daughter, working together in a common enterprise, each able physically to be of service to the other, would not expect pay. The duties and service of each would be reciprocal, under such circumstances. Of course, the service rendered by each may not be exactly equal. Allowance must be made for the willingness of either to help the other, because of affection, and because of the duty naturally due from one to the other. On the other hand, suppose the service rendered by one to the other is greatly disproportionate. As an extreme illustration, suppose one is strong, healthy, willing, and renders substantially all the service, while the other is old, feeble, crippled, and unable to render any, or but little, service. Could it be justly said that the duties and service were reciprocal, even though there was affection and a duty because thereof? It seems to us that it cannot be said, as a matter of law, that it was reciprocal. Though, as said, plaintiff prospered in his outside enterprises, when he was able to devote his time thereto, it is almost inconceivable that he would give up his own chances and his own business, to a large extent, as the evidence tends to show he did, for a considerable part of the time at least, and devote his time to the care of his mother, and substantially create and build up the estate left by her, for the benefit of her other heirs, without any expectation on his part of compensation other than his board, and such other benefits, if any, as the evidence shows he received. Taking these and all other circumstances in the case,
3. It is thought by appellant that, because interveners, in one division of their plea, set up that deceased had paid plaintiff, this is an implied admission that there was an agreement to pay; that, though the statute allows inconsistent defenses, a defendant may not admit sufficient facts in one division of his answer to warrant judgment for the plaintiff, and at the same time claim the benefit of a denial in another division (citing cases). Appellees respond that they had a right to plead inconsistent matters. Plaintiff did not introduce that part of the pleading in evidence, or offer to. Whether he had a right to do so, we do not determine, for the reasons which will be stated in a moment. It is doubtful whether appellant’s position at this point can be sustained; but, since we hold the evidence sufficient
4. It is argued by appellees that the other children, plaintiff, and the mother, were cotenants, or tenants in common, and that they were all engaged in the farming enterprise as a partnership, and that the remedy for a division of the proceeds is by accounting; that they were all «operating their own farm; and that, therefore, the relation of master and servant between them can only be created by an express agreement. This matter was not raised by any pleading filed by interveners in the district court, and no accounting was asked by either party. We have said that the heirs seem to have permitted the mother to occupy the premises without objection. Towards the last, only deceased and plaintiff lived on the land. ' We have held that it was necessary for plaintiff to show that there was an agreement, to the extent that the services were rendered with the expectation on the part of both that compensation should be paid. Possibly the fact that the parties occupied the- premises together, as shown, would be a circumstance bearing on the question as to whether the family relation existed between plaintiff and deceased, and as to whether compensation was to be paid. But, under the circumstances, we do not feel called upon to determine this point.
For the reasons given, the cause is — Reversed and-remanded.