28 Colo. 233 | Colo. | 1901
delivered the opinion of the court.
Where a minor enters a family, receiving those attentions and care, and the ordinary necessaries which would be furnished a member by nature, he cannot recover for services rendered the head of the family during that period, unless an agreement be shown to that effect. In such circumstances the presumption of law is that his support compensates for the services he may perform. To overcome such presumption, an agreement for compensation must be established by evidence which is clear, positive snd direct. Windland v. Deeds, 44 Iowa 98; Thorp v. Bateman, 37 Mich. 68; 17 Enc. Law, 336 et seq.; McGarvey v. Roods, 73 Iowa 363; Smith v. Johnson, 45 Iowa 308; Candor’s Appeal, 5 W. & S. (Pa.)513; Wall’s Appeal, 5 Atl. (Pa.) 220; Wyley v. Bull, 41 Kan. 206; Tyler v. Burrington, 39 Wis. 376; Hall v. Finch, 29 Wis. 278.
Complainant was taken charge of by deceased at a time when he was a lad of tender years; when he was unable to. render services which would compensate for the care and attention bestowed; his own father appears to have been unable or unwilling to give him support — at least, contributed nothing to that end nor exercised any control over him after he went to the home of the deceased,and finally deserted him. He was to remain with deceased during his minority. During his residence with deceased, he was furnished with a comfortable home, the necessaries of life, given some opportunities for education,and in return for the expense thus incurred did such work as a boy upon a farm is expected to perform.
Upon this proposition the evidence falls far short of being clear, direct and positive; no account was kept between deceased and complainant. His brother testified that deceased said he would pay him what he was worth. The circumstances negative this statement. After complainant had arrived at the age when he was capable of doing work on the farm, which might be worth more than his support, no change was made by either of the parties which indicates that he was to be paid. He never made a claim against deceased upon the account which he now asserts against his estate. He waited for eight years, and then, when the lips of deceased were sealed, makes his claim for the first time. During this period he had been of age something over five years. These circumstances are such that the evidence regarding the contract upon which he relies not only falls short of the degree of clearness which the law requires, but demonstrates to a moral certainty that he was taken charge of by deceased and admitted to his home, a member of his family, as an act of charity. To prevent such an act,through fraud,being converted into an obligation to pay the one to whom it is extended for services rendered in return for the benevolence bestowed, the rules of law have been formulated which govern this case, and under which, from the facts disclosed by the record, the complainant is not entitled to recover.
The judgment of the county court is reversed, and the cause is remanded, with directions to enter an order disallowing complainant’s claim.
Reversed and Remanded.