Windland v. Deeds

Beck, J. The only questions presented and discussed in the argument of defendant’s counsel are those that arise upon the instructions refused by the court.' Other points made in [100] the assignment of errors are not considered by counsel; we are required to regard them'as waived. 1. contbact: nor. I. The refusal of the first instruction asked by defendant is complained of by counsel. It is, in effect, that if plaintiff was a member of defendant’s family during the time the services were rendered, receiving his support, clothing, etc., no recovery can be had for services rendered by him except upon proof showing a promise by defendant to pay therefor. This instruction is'covered by one given, in which the jury are directed that to authorize a recovery by plaintiff, they must find that his services were rendered under an agreement with defendant to pay therefor. There is no difference in the rule of the instruction given and of the one refused involving plaintiff’s right to recover under a contract. II. The fourth instruction refused is, in substance, that if this contract was made by plaintiff’s mother, under his authority, and “he acted under his contract for seven years,” he is estopped to deny it. The plaintiff, neither in his pleadings or evidence, attempted to deny the contract. The controversy between the parties as to the contract related to its terms. The instruction, therefore, was inapplicable to the issue between the parties. III. Certain instructions asked by defendant related to a settlement between plaintiff’s mother and defendant. They were properly refused for the reason that no issue involving a settlement is presented by the pleadings. Indeed, we have been unable to discover that any claim of a settlement was made upon the trial. IY. Another instruction refused is to the-effect that plaintiff’s mother, as his natural guardian, is alone entitled to sue and recover for plaintiff’s services. It should not have been given for the reason that no defense of that kind was presented in the answer of defendant. 2 _._. custom. Y. The court was asked to direct the jury that if they found a custom prevailed in the neighborhood of the parties that boys of plaintiff’s age were taken into families upon certain terms, they should presume [101] that the understanding of the parties accorded with it. Both parties in their pleadings set up a contract, but the terms were differently stated. Customs cannot control contracts not made with reference thereto. The contract in this case cannot be varied by custom; the instruction was correctly refused. YI. The twelfth instruction asked by defendant was properly refused for the reason that its substance is included in an instruction given by the court upon its own motion. Ye have considered all points made in the arguments by defendant’s counsel and find no error in the court’s rulings. Affirmed.