Davis v. Goodenow

The opinion of the court was delivered by Redfield, Ch. J. In this case the action is brought by a grandchild to recover for services rendered to her grandfather while she constituted a member of his family, where she was principally brought up, her father having died when she was a child, and left the family poor. The plaintiff’s mother being a child of the defendant, he took an interest in the family, and rendered them assistance. The services were all performed after she became of age, and had gone abroad to work for herself, and returned at defendant’s request, with the assurance she should be paid as well as she was then doing. This was substantially repeated a good many times during some three years while plaintiff continued mostly in defendant’s service, much as before she was of age, rather as a member of the family than as a servant. No reckoning of wages or account on either part was ever had or kept, nor was any claim ever made by the plaintiff for pay, or that anything was due her when she left the defendant, or when she was -in distress for money to get home with from New Hampshire, the second time she left him, or when she was married, or when the defendant distributed his property, as he did most of it, it would seem, giving some to plaintiff’s mother, and some to her children. Under this state of the facts, the case seems to us the ordinary one of a child, or other relative, living in the family of the parent, or one occupying that place, after they become of age, with the assurance they shall be liberally compensated, without saying in what mode, and with no definite expectation that either the service or support shall create a debt; in which case it is well settled that neither can sustain an action against the other for any excess of the real value of the one above the other. We think the rule laid down by this court in the cases cited in argument is not to be departed from, viz. that it must appear une [718] quivocally that the parties, at the time of the service, supposed they were dealing as debtor and creditor, that the service was for wages and not for support, or in expectation of a gratuity or legacy. The judgment which was rendered in Andrus and Wife v. Foster, for a fragment of the service, was upon the ground that the parties seemed to have considered that service as performed for wages, the defendant having already paid her thirty dollars in money towards her wages, as the auditor reported, before she left; while here the plaintiff left repeatedly, and other events occurred imposing upon her the strongest motive for making a demand of wages, if she deemed herself entitled to any, and she made no such claim. And so in the late case of Noy v. Noy, in Orleans county, the report showed unequivocally that the defendant recognized the service as a pecuniary debt, naming the sum of two thousand dollars as the probable amount. But, in the present case, there is nothing to show that the parties so regarded it, unless it was to be inferred from the circumstances and the kind of service. And if there is any force in these, the inferences should be made by the auditor to whom they were addressed. And as we are inclined to give to the plaintiff every reasonable chance of making out her case, the judgment will be reversed and the case recommitted, that the auditor may report whether there is anything in the case which shows satisfactorily that it was the expectation of the parties, at the time the service was performed, that it created a debt, or that the plaintiff should have wages. This is the very best ground upon which a recovery in such case could be allowed. The case of Candor's Appeal, 5 Watts & Serg. 515, which is certainly a very satisfactory ease upon this subject, seems to require even more than this. Rogers, J., says, a recovery could not receive “ the countenance of the court unless accompanied with clear proof of an agreement, not depending on loose and idle declarations of the defendant, but on unequivocal acts, — as a settlement of an account, or money paid as wages (as in the case of Andrus and Wife v. Foster.) No doubt should be suffered to remain that the services were rendered in the expectation of wages, and not with a view to remuneration from the bounty of the parent, either by will or by gift in his lifetime.” This scorns to us the true rule upon the subject, except that we should regard the finding of an [719] auditor or the jury as conclusive upon this expectation, if found upon evidence proper to be received as tending to establish the point. But to allow such a recovery upon no express finding of the fact, and upon circumstances which, taken all together, seem to us to indicate the contrary, would be virtually to abrogate the rule, that such service did not create a debt. The same view seems more fully confirmed in a recent case in Pennsylvania, Lantz v. Trey and Wife, 19 Penn. 866. Lowrie, J., there says : “ When individuals stand to each other in a family relation, as distinguished from that of master and servant, the law implies no contract for wages.” “This relation must be first changed. Of course an express contract for wages will have this effect.” Judgment reversed and case recommitted.