Sloan v. Dale

ELLISON, J. This is an action for five years’ work and labor performed for deceased at $300 per year. The judgment in the trial court was for plaintiff for $1,284.37. The evidence tended to show that plaintiff was a niece of deceased, a bachelor, and that about seventeen years prior to his death her husband died leaving her without sufficient means of support and that deceased had his brother go to see her and invite her to make her home with deceased, which she did until the day of his death. There was evidence, however, tending to show that deceased himself went for plaintiff and in asking her to go to his house he said that from which it could reasonably be inferred that he expected to pay her for her services. There was evidence tending to show that deceased made expressions at different times during these years going to show that he intended to pay plaintiff. On the other hand, there was no evidence of any express understanding between the parties, or that there was ever any settlement between them, or any payments in all that time. There are no credits on account for payments, or for board or clothing, or that the contract of hiring included board and clothing. Erom the face of plaintiff’s case it is reasonable to infer that during these seventeen years no payment on account had been made, for if there had been, we may justly infer that counsel would have shown it as very strong evidence of a contract to pay for the last five years sued for. Plaintiff must have been a person of considerable independent means, or else she could not have sustained herself without some settlement and pay [90] ment by Mm whom she charges was her debtor. Seventeen years of constant labor by one in poor financial circumstances, without ever once receiving a payment, challenges one’s credulity. Yet we will concede that plaintiff has shown enough from which a jury might infer that there existed an intent on the uncle’s part to pay and on the niece’s part to receive pay. In this condition of the evidence the court refused the following instruction offered by defendant: “The court instructs the jury, that if they find from the testimony that the plaintiff was a niece of Lafayette Shindler, deceased, and some seventeen or eighteen years ago came to reside with the said Lafayette Shindler, on the death of her husband, and continued to reside with the said Lafayette SMndler from said date up to the time of his death, as a member of his family, that the law presumes that any services rendered, by the said plaintiff to the said deceased, were to be gratuitous and not paid for, and before the plaintiff can recover in this case, it devolves upon her to overcome such presumption, and show that there was an agreement, expressed or implied, to pay her for said services.” We think the court erred in so doing. That instruction states the law as declared on a great number of occasions in the appellate courts of the State. Woods v. Land, 30 Mo. App. 176; Brock v. Cox, 38 Mo. App. 40; Penter v. Roberts, 51 Mo. App. 222; Finnell v. Gooch, 59 Mo. App. 209; Lawrence v. Bailey, 84 Mo. App. 107. The trial court doubtless refused the instruction in the belief that one given, which is substantially a copy of that approved in Sprague v. Sea, 152 Mo. 327, was better suited to the case. But we are not of that opinion. The facts in Sprague v. Sea were different in important particulars from much of that in this case tending to support defendant’s defense. Enough so, at least, to make the instruction as offered [91] by defendant tbe better one for this case. It certainly contains a fair statement of the law and it can not be disputed but that it is based o-n evidence in the cause. The judgment will be reversed and cause remanded. All concur.