Byrnes v. Clark

LyoN, J. Tbe testimony of Kate Clark, tbe'wife of the defendant, was read in evidence. It is to the effect that on the day the deed from Darby Clark to the defendant was executed, the latter gave it to her to put away, and that she placed it in a trunk under her exclusive control, and kept it there until it was taken to be recorded. The admission of this evidence is assigned as error. This testimony was taken in another and similar action brought by the plaintiff against Martin Clark. It was there objected to as incompetent and immaterial. By a stipulation between the parties this case was determined on the proofs taken in the other caso and no additional testimony was taken. The above facts are agreed upon by the parties to save the necessity of an amendment to the bill of exceptions. Neither in the action against Martin or in this action was any objection made to the competency of Mrs. Clark to testify as a witness for the defendant. In the absence of such objection the alleged error is not well assigned. Moreover, the delivery of the deed by Darby Clark to the defendant, at the time of its execution, is sufficiently proved by other testimony. The second error assigned is that the court erred in finding that the conveyance of July 14, 1876, by Darby Clark to the defendant was made upon a good consideration, and without the intent to cheat and defraud the creditors of Darby Clark. Whether this assignment of error is well made or otherwise, is a vital question in the case. The circuit judge found, and, we think, upon sufficient evidence, that the defendant left home in 1869, when he reached the age of twenty-one years, and worked for two years on his own account, during which time he saved from his earnings $280. [21] At the end of that time he returned home for a visit. After be bad made bis visit to bis father, be. was about leaving again, taking bis money with him, when bis father induced him to remain and work for him, and to let him have the $280, by promising the defendant that, as compensation for such service and as consideration for such money, he would, at bis death, give bis property, including the land in controversy, to the defendant. And further, that in consideration of such money and the defendant’s services Darby Clark executed to him the conveyance of July 14,1876, and that the defendant received the same in good faith and without knowledge that his father was in debt to any considerable amount. The claim of the learned counsel for the plaintiff is that there is no sufficient proof of an express agreement by Darby Clark to pay the defendant wages for his services, and he cites numerous cases in this court and elsewhere to support the proposition that in the absence of such express agreement the' defendant cannot maintain a claim for services against his father, if living, or against his estate after his death. The legal proposition contended for is well established. There is no implied contract on the part of a father to pay wages to his child who remains with him and renders him services after becoming of age. To recover, in such a case, the child must show an express contract by the father to pay such wages, either by direct and positive evidence of the fact, or by circumstantial evidence equivalent to direct and positive. Tyler v. Burrington, 39 Wis., 376, and cases cited; Wells v. Perkins, 43 Wis., 160. See, also, other cases in this court on the same subject, cited in the briefs of the respective counsel. Rut it is not essential. that the rate of wages or the time of payment be agreed upon. If there is an express contract in such cases to pay for the services, the child thereby becomes the servant of his father in respect to such services, and may recover quantum meruit. This is the doctrine of Wells v. Perkins, supra; also of Manseau v. [22] Mueller, 45 Wis., 430. Ia the latter case the testimony to support the claim of a son was very similar to the testimony on the part of the defendant in this case. The difference between the two cases is that in Manseau v. Mueller the court did not credit the testimony tending to show the alleged agreement by the father to pay wages to his son, and the latter was defeated in the action, while in this case the court believed the testimony which tended to show such an agreement, and the son prevailed in the action. ITence, we find in this case not merely a good consideration but a valuable consideration paid for the land by the defendant. We also think the testimony shows an adequate consideration paid therefor. The land is valued at $1,500 at the time it was conveyed. The defendant paid therefor $280 in 1811, and rendered five years’ services on account thereof before the conveyance. The value of his services was not proved, but it appears that he was able to save $140 per year, over and above his expenses, during the two years he was away from home. It is fair, we think, to estimate his services at the same rate during the five years he worked for his father. At this rate the defendant paid nearly $1,000 for the land, exclusive of any allowance of interest. During the last two years of the five the defendant had a wife, who kept the house for the defendant and his father. It is fair to presume that she earned her own living. ■ It should be observed that the defendant continued to render some services to his father after the conveyance, until the death of the latter nearly two years later. The above facts are mainly proved by the testimony of the defendant. The circuit judge evidently believed his testimony, and we must, therefore, take it as true. Our conclusion is that the facts found show there was not only a valuable but an adequate consideration paid by the defendant for the land; and this is probably what is intended in the conclusion of law on that subject. [23] Did the defendant take his conveyance “ in good faith, and without knowledge of any indebtedness owing by his father,” except certain small bills mentioned in the findings? The circuit judge so found, and we think the finding is sustained by the evidence. Certainly there is no evidence that he had actual knowledge of the plaintiff’s judgment. That judgment was recovered in 1863, and it ceased to be a lien upon the land of Darby Clark in 1873. R. S. 1858, ch. 132, sec. 36. The plaintiff slept upon his rights for nine years after he became of age, before the land was conveyed to the defendant, and made no effort to enforce collection of it. During nearly all of that time the title was in Darby Clark, and it was only necessary for the plaintiff to apply to the court for execution before the lien of his judgment expired, and advertise and sell the land in controversy by virtue thereof. R. S. 1858, ch. 131, sec. 2. If he did not know that Taugher, the fraudulent grantee of the land in the conveyance of 1862, reconveyed the ’ land to Darby Clark in 1867, a very moderate degree of diligence would have informed him of that fact. Under these circumstances, chiefly because the plaintiff’s judgment .was not a lien upon the land in 1876 and did not affect the chain of title thereto, we do not think the defendant chargeable with constructive notice that the plaintiff had an unpaid judgment against Darby Clark. The third and only remaining assignment of error is predicated upon the conclusion of law that the plaintiff had been guilty of such laches that a court of equity should not grant him relief. Having reached the conclusion that the defendant is a Iona fide purchaser of the land for a valuable and adequate consideration, this alleged error is immaterial, and hence will not be considered. Upon the whole case we think the judgment should be affirmed. By the Court.— Judgment affirmed.