Mountain v. Fisher

Cole, J. It is claimed that the motion for a nonsuit should have been granted, because no contract was shown by which the plaintiff was to be paid for her services. It is said that a person cannot be made a debtor without a contract express or implied, and that no express contract was shown, nor from the facts in the case would the law imply one. It is admitted that there was no express agreement made about the plaintiff’s wages. But although no express promise was shown to pay the plaintiff what her services were reasonably worth, yet it is manifest the law would imply such a promise under certain circumstances. And the point is, .was theré sufficient evidence in the plaintiff’s case to submit the question to the jury, whether the services were réndered in expectation of being paid therefor, or not? And we think there was sufficient evidence upon that point to carry the case to the jury. The court very fairly submitted the issue whether plaintiff rendered the services as a child or member of the defendant’s family, in consideration of being furnished a home, maintenance, education, etc. For the jury [97] were instructed,' that if they found from the evidence that the defendant received the plaintiff into his family to be treated by him as a child of his own, and to give and furnish her a home in his family, and to furnish her food, clothing, care and attention, such as a child of his own was reasonably entitled to — and the plaintiff went to live with the defendant upon this understanding, and without any other understanding as to compensation for services, then the plaintiff could not‘recover, if the defendant had faithfully performed the agreement on his part. The rule of law, therefore, in regard to the family relation and to persons standing in loco .parentis, which is invoked by the counsel for the defendant, seems to have been recognized by the circuit court, and was given to the jury for the guidance of their judgment. Under this instruction the jury must have been satisfied that the services were not rendered by the plaintiff in consideration that the defendant would receive her into his family and maintain and support her as a child, but that they were rendered under such circumstances that the law would imply a promise to pay what they were reasonably worth. Again, it is insisted that the court erred in excluding the testimony of the defendant’s wife. From the peculiar nature of the case, it is said, the wife was a most important witness for the defendant, and therefore her evidence was admissible. There are cases where the wife is held a competent witness in favor of the husband; but it is very evident this case does not come within any of the exceptions. The wife was offered generally in the cause, and not to prove any understanding or agreement made by her with the plaintiff in respect to wages, while acting as the agent of her husband. She was not, therefore, a competent witness, within the rule of Birdsall v. Dunn, 16 Wis., 235, and Hobby v. The Wisconsin Bank, 17 id., 167. See Meek v. Pierce, 19 id., 300. [98] It is further insisted, that the court erred in not charging the jury as requested by the defendant. The pith of the instructions asked was, that if the jury should find the understanding between the plaintiff and defendant to be that the plaintiff was to remain with the defendant, and receive, as compensation for her services, a portion of his property upon her marriage or upon his death, then this agreement, being beneficial to her, was binding in law, and she could not recover in the action. But the difficulty is, to say, upon the evidence, that such an arrangement, even if made, would be beneficial to ,the plaintiff. ' She was an infant, and could avoid such an agreement if prejudicial to her. The evidence to show any such arrangement was exceedingly slight, if not totally wanting. The defendant testified that there never was any contract of any kind as to the terms upon which the plaintiff was to remain with him. If such an understanding existed, the defendant would surely have known it. And besides, what was the defendant worth, and what portion of his property was the plaintiff to receive on her marriage or upon his death ? The proof is very indefinite and unsatisfactory upon this point, and therefore it is impossible to say such an arrangement, even if made, was beneficial to, her. The arrangement was voidable by the plaintiff by reason of her infancy, according to the general rule of law; and there is not enough in the case to show that it would come within any of the exceptions, so as to make it binding upon her. For these reasons, we think the instructions were properly denied. It follows from these views that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.