Resso v. Lehan

Given, O. J. I. Appellant’s first complaint is of certain rulings in taking the testimony. These and other objections will be better understood by stating the following undisputed facts: In the fall of 1881, the plaintiff, then about eleven years of age, and without parents, guardian, or home, was taken by the defendant, without legal adoption, to Ms home to reside. Plaintiff continued to, reside with the defendant, as a member of his family, until about December, [48] 1889. During all that time, plaintiff received his support from the defendant, and labored for the defendant on his farm, except during about seven months', when attending school, during which time he worked only mornings and evenings. 1 2 3 4 [48] II. Appellant complains that plaintiff was permitted to' state the amount of money paid! to him by the defendant. This was. in issue under plaintiff’s allegation that no' part of the wages claimed had been paid, and defendant’s allegation that he had been paid in full. The evidence was properly admitted. Under the issues and undisputed facts, it was immaterial how long plaintiff had been with' the person from whom defendant received him, what efforts1 had been made to get Mm a home, or whether plaintiff considered himself the adopted son of the defendant; add that evidence was properly excluded. There was mo error in admitting evidence of the kind and amount of clothing furnished! to the plaintiff, nor as to the kind of boy he was to work, and the kind and amount of work he performed for the defendant. This, was material to1 fix the amount to be recovered. Plaintiff was permitted to testify that at onetime “Mr. Lehan told me, — going down to the yard, one day, he says,— If you stay with me until’ such a time, I will give you a team, harness', and wagon, and I will give you $200.’” Let it be conceded, as claimed by appellant, that this only tends to show a mere promise, and not a contract, yet it was admissible as tending to shiowthe expectation of the parties as to compensation for the services. Plaintiff testified that, some time after the defendant had turned him' off, he returned to' do certain work, and [49] was taken sick, and remained ill at defendant’s home for several weeks. He was then permitted to state that the county paid1 one of the physicians who attended him, and that he paid the other, and the kind of care he received from defendant’s family. This wasi admitted, says the court, only to show the relations between the parties. There was no prejudicial error, if error at all, in the ruling. Other errors are assigned upon rulings in taking the evidence, but we do> not think the rulings were erroneous, nor the complaints of sufficient importance to require further notice. ~ III. The court, after saying to' the jury that plaintiff was a member of defendant’s family during the time he rendered- the services sued for, instructed as follows: “The presumption of law is that such services were gratuitous; and the burden of proof is on the plaintiff to show an express promise on defendant’s part to make compensation therefor, or such facts and circumstances as will authorize the jury to find that the services or some part thereof, were rendered in the expectation by the plaintiff of receiving, and by defendant of making, compensation therefor.” This instruction is in accord with the ruling in Scully v. Scully’s Ex’r, 28 Iowa, 548. See also McGarvy v. Roods, 73 Iowa, 363 (35 N. W. Rep. 488); Cowan v. Musgrave, 73 Iowa, 384 (35 N. W. Rep. 496); Magarrell v. Magarrell, 74 Iowa, 378 (37 N. W. Rep. 961). 6 Appellant argues: at length, and with many citations, that the promise,, as> testified to by plaintiff and quoted above, does not constitute an agreement to pay for the services;, and therefore plaintiff cannot recover. Again, we say, let this be conceded, yet surely it tends, not only to show an express agreement, but the expectations: of the parties. There was: other evidence, tending in the same direction, from [50] which the jury was warranted) in finding that tho plaintiff rendered, and the defendant received, the services with the expectation that compensation would be made, if not that there was an express agreement. 7 Appellant contends that plaintiff is only entitled to recover, if at all, upon the promise1 to give him the team and two hundred dollars, and that he cannot recover therefor in this action. That promise is . not pleaded or relied upon as of itself constituting an agreement, but is relied! upon, in connection with other facts, proven, to- show the understanding and expectation of the parties. 8 The court told the jury that the facts and circumstances must fairly show that the parties 'expected to give and receive compensation. Appellant contends that the circumstances, must “indicate clearly, directly, positively, and unambiguously” such expectation. Positive proof, in the sense that it leaves no- doubt, is not required on such issues: Pacts and circumstances that fairly show the alleged expectations surely indicate them as claimed by appellant. The instruction calls for the degree of proof required in such cases. 9 Much is said in argument as to contracts by and with minors, and the right of minors, to- disaffirm their contracts, all of which has but little, if any, applica.tion to this case. True, plaintiff was a minor ; but he is entitled to recover for his services, though a member of defendant’s family, if he has overcome the presumption that the services- were gratuitous by showing an express agreement or expectation of the. parties that he was to be compensated. The jury found specially, and with sufficient warrant in the evidence, that there was. an express1 promise on defendant’s part to pay for the services; and plaintiff [51] is entitled to> the benefit of this agreement, though he was a minor. 10 It is complained that the jury was. told, if it found for the plaintiff, it should! give him what his services were worth more than the board, support, clothing, education, and money furnished him by the defendant. The complaint is that this denies to the defendant credit for the “benefits and influence of home, the care bestowed upon the plaintiff, and all those matters that surround and influence boys, and really fix and determine their characters and worth in manhood.” According to the record, this case is not one for a very large credit on these accounts, yet whatever credit appellant is entitled to is accorded to him in the instruction. All that appellant contends for is included in support and education. IV. Appellant’s further contention is that the verdict isi contrary to- the evidence and instructions. We have examined the record with the care which the importance of the case demands., and are of the opinion that the instructions correctly present the law applicable to. the case; that the verdict is. in harmony with the instructions, and has such support in the evidence as that we should not disturb it. — Affirmed.