Krapp v. Krapp

Birdzell, J. This is an action to recover for board and lodging alleged to have been furnished by the plaintiff to the deceased. A statement of the account, which is made a part of the complaint,- shows that board and lodging were furnished during divers periods of time between September 20, 1913, and May 10, 1918, for which the estate is sought to be charged at the rate of $30 per month and interest from the last-named date. Prior to September 30, 1913, the deceased had been living in Iowa. That fall the plaintiff, a daughter-in-law of the deceased, and her husband, or the latter alone, induced the deceased, Johan, to come to North Dakota. At that time Johan was about eighty-two or eighty-three years of age. Erom that time until his death, in the month of October, 1918, the deceased lived with the plaintiff and her husband approximately twenty months. There is no claim that the services rendered to Johan were of any special or peculiar character or that he was in any way disabled. The plaintiff, however, testified that he required more care than an ordinary person; that his room required as much care as a little child’s room; that he smoked in his room, was not careful in his habits, and spat upon the floor. At the time of his decease Johan was staying with another son, Paul, who lived about half a mile distant from the plaintiff. About three weeks before he died, [310] Johan made á will leaving practically all of his property to Paul. It seems that- the relations between Paul and John, plaintiff’s husband, were somewhat strained before this and it appears that John did not visit his father during his last illness more than once,' the plaintiff not at all, and that neither the plaintiff nor her husband attended the fum eral. ' There had been some prior business relations between Johan and John^ as a result of which the father took legal proceedings.to collect a debt amounting to more than $3,500, and there was also some litigation between John and Paul which resulted in a judgment in -favor of the former for $140. After Johan’s decease, contest proceedings were entered to set aside the will. A settlement was later made as a result of which Paul paid agreed amounts to the other heirs, the plaintiff’s husband'John receiving a cashier’s check dated August 1, 1919, for $800, which was indorsed as settlement in full for his claims against the estate of Johan Krapp. This suit was,begun in January, 1920. Prom a judgment in the plaintiff’s favor for the full amount of the claim with interest and costs, the defendant appeals. A number of errors are assigned but it will be unnecessary to consider more than one or two of them. In charging the jury the court said: “There are two kinds of contracts, an express contract and an implied contract. If the plaintiff agreed to furnish certain board and lodging for said Johan Krapp, without express terms having been agreed upon, if the same was furnished, then there would be an implied contract upon the part of the saivd Johan Krapp, to pay for the same what it-was reasonably -worth. If you find that there was an express contract or an implied contract upon the part of Johan Krapp, to pay for any-lodging thát was furnished, then the plaintiff would be entitled to recover for the same if she is the owner and holder of this claim, and if no part of the same has been paid. ... : “You understand that the estate of Johan Krapp, deceased, is bound and obligated to any contracts or agreements, express or implied, that were entered into and made by him prior to his death.” The appellant predicates error on the court’s action in charging the jury as above. We áre of the opinion that the charge is erroneous -and clearly prejudicial. :It"is a well-established rule that services of1 the character of those rendered -in the instant case, when performed-by one [311] member of a family for another, are presumed gratuitous. Tf gratuitous, it follows that the person rendering the. services does; not expect to charge therefor and that the person to whom they are. rendered does not expect to pay. This negatives a contract relation. The presumption of gratuitous service which arises from the relationship of the parties must be overcome either by proof of an express contract or by proof of circumstances, such as the menial character of the services rendered, sufficiently strong to warrant an inference that compensation was intended. Bergerson v. Mattern, 41 N. D. 404, 170 N. W. 877. See also The Law of Quasi-Contracts, Woodward, § 51, and cases cited; note in 11 L.R.A.(N.S.) 873, 879; 11 R. C. L. 208; 18 Cyc. 412. We are of the opinion that there were no facts shown in- the instant case sufficient to overcome the presumption of gratuity and thus there is lacking any basis for liability upon an implied contract. Under this record, if the defendant is liable at all, he is liable because of an express contract. But, under the court’s charge, if the jury had not believed the testimony going to establish the express' contract, it would have been their duty nevertheless to have rendered a verdict for the plaintiff upon the implied contract, as they were told that an implied contract resulted from the furnishing of the board and lodging. Bor this, error a new trial must he awarded. The appellant asks, however, that this court order a dismissal of the case on the ground that it is impossible for the plaintiff to establish a liability. The argument is based upon the incompetency of the plaintiff and her husband as witnesses to-any transaction with the deceased under § 7871, Comp. Laws 1913. The plaintiff is clearly incompetent under that section, but it does not follow that her husband is. Under -the evidence presented here, we are of the opinion that a question of fact -is presented as to whether the plaintiff is the sole owner of the claim in suit or a joint owner with her husband. If the latter, the .husband is likewise incompetent. There is testimony to the effect’that John Krapp disclaimed from the beginning all interest in the-transaction and referred his father to Mrs. Krapp for the making-of any arrangement1 concerning his board and lodging with the understanding that she was the sole person interested. If'there was a. parol-contract, betweqn. the plaintiff and Johan Krapp, if the plaintiff was the sole person interested therein, -upon one side, and-, if John Krapp heard the provisions of-.the [312] contract discussed between the plaintiff and Johan, he is a competent witness. But testimony of this character should be weighed with caution. See 9 Enc. Ev. 518. It is obviously unnecessary to consider the other assignments of error. The judgment and order appealed from are reversed and the cause remanded for a new trial. Christianson and Bronson, JJ., concur.