Westcott v. Estate of Westcott

Start, J. The question of whether there was any evidence tending to support the plaintiff’s claim is presented for consideration by the defendant’s request to charge. The plaintiff’s evidence tended to show, that he was a son of the deceased, David Potter Westcott; that, after he became twenty-one years of age, he left his father’s home, where he had formerly resided, and went to Michigan, where he was married and spent a few years; that his father sent for him to come home; that his father stated he had a good deal of land and the plaintiff had better come, home to work on the farm, as he could do better here than in the west; that he did come home and become an inmate of his father’s house and perform various kinds of labor upon his father’s farm, such as haying, harvesting, milking, teaming, drawing wood, etc., for his father’s benefit; that his services were worth from eighteen to twenty dollars per month. While this testimony did not tend to show an express promise on the part of the father to pay for the services of [237] the son, we think the circumstances under which the son returned to his father’s home, after being away for several years, and the circumstances under which he thereafter continued to live with his father and perform services for his father’s benefit, taken in connection with the father’s declarations and statements, were for the consideration of the jury upon the question of whether there was a mutual understanding and expectation that the services were to be paid for; and that the case was properly submitted to the jury- If the parties mutually understood and expected that the services were to be paid for, the relation of debtor and creditor existed; and, if the jury so found, the plaintiff was entitled to recover the balance due him for his services. It was not necessary to show an express agreement to pay. It was sufficient to show that the father expected to pay for the services and that the son expected payment; and such expectation could be shown by the circumstances under which the services were performed, the situation and surroundings of the parties, their pecuniary circumstances, and the declarations of the party sought to'be charged. In Sawyer v. Hebard’s Est., 58 Vt. 376, it is said: “An examination of these cases shows that no definite rule has been, or can be, laid down, in regard to what the circumstances must be, to show mutual expectation to pay for such services, or support, and that each case, in this respect, is made to turn largely upon its own peculiar circumstances.” In Doane v. Doane and Tntstee, 46 Vt. 485, the son had means in his hands belonging to his father, with which, if paid over, the father could provide his own support. The son furnished the support, and it was held that these circumstances would “help the implication that it was to be paid for.” In Freeman v. Freeman, 65 Ill. 106, it is held, that, when a son, some time after reaching his majority, left his parents and commenced business on his own account and was [238] afterwards induced by his father to return, all his other sons having left him, and he continued to labor for his father for many years, managing his affairs and supporting his parents, for which he received nothing but his board, scanty clothing and a little spending money, it was but reasonable to presume that the father intended to pay, and the son to receive pay, for his labor, either in money or by devise in his father's will. The witness, Jennie Westcott, was properly excluded. Her husband was the residuary legatee and devisee named in the will of David Potter Westcott. The estate was solvent, and a recovery in this case would directly dimish the sum he would otherwise take under the will. He was, therefore, a party in interest, and his wife was not a competent witness. Bamster v. Ovitt, 64 Vt. 580. The defendant made no offer in connection with the testimony of Hernán Stannard, and it does not appearwhat his answer would have been respecting the loan of money to the plaintiff, if it had been given; therefore, error does not appear. Roach v. Caldbeck, 64 Vt. 593. The defendant, after showing the loss of certain letters written by the plaintiff to his mother and shown by her to the deceased, offered to show that the plaintiff wrote in these letters that he was in want, needed money, was unable to make a living, and asked for assistance; that, in consequence of the information received, and with a view of relieving the plaintiff’s wants, the deceased sent him one hundred dollars, to enable him to return to his former home in the family of the deceased; and that the plaintiff shortly afterwards did return. This testimony was excluded and the defendant excepted. This testimony, if admitted, would have tended to show the plaintiff’s necessities, his situation and circumstances while in the west and just before he came to his father’s house, the reason for his coming, the circumstances under which he entered his father’s family, and explain and rebut the circumstances disclosed by the [239] plaintiff’s evidence. It was admissible upon the issue respecting the mutual understanding and expectation of the parties, and it was error to exclude it; and, for this error, a new trial must be granted. Judgment reversed and cause remanded.