Salvador v. Feeley

Given, J. 2 —I. Appellee questions the sufficiency of the assignments of error as made in the original abstract and the right of appellants, to file their additional assignments when they did. Not one of the six assignments of error made in the original abstract “points out the very error objected to,” as required by section 3207 of the Code of 1873, section 4136 of the Code, and section 36 of the rules of the supreme court No reason is given in either assignment why the ruling complained of is claimed to be erroneous. They are general, as that the court erred in giving instructions 1 to 9-|, and in refusing to give the instructions asked. Clearly, these assignment are insufficient.. 3 On January 5,1898, more than ten days before the first day of the trial term, appellant served upon appel-lee an “additional and amended abstract,” setting forth three additional .assignments of error, which áre sufficiently specific. This additional and amended abstract was filed-without leave of court on January 10, 1898, less than ten days before the first day of the trial term, and after appellee’s argument had been served and filed. Appellee, in an additional argument, [482] insist® that appellant had no right to file said additional assignments of error after he had filed his argument, without first obtaining leave from the court, and cites Betts v. City of Glenwood, 52 Iowa, 124. In that case appellee’s motion to strike the amendment to the assignment of errors upon grounds similar to those urged in thisi case was submitted with the case and sustained. The right to amend on leave granted is recognized, and it is said: “In such a case, the appellee would be entitled to time to present argument thereon.” Appellee in this case did not move to strike the amendment to the assignment of errors, but, after insisting that appellant had no right to file the same, proceeds to present his argument upon said amended assignments. In Hall v. Railway Co., 84 Iowa, 311, appellee moved to strike from the files an amendment to the assignment of errors on the ground that it was filed too late, and this court said: “It is permissible to file such amendments in the furtherance of justice,” — citing Stanley v. Barringer, 74 Iowa, 37. It is further said: “In this case it doe® not appear that the submission in this court has been delayed, nor that the appellee had been in any manner prejudiced by the filing of the amendment.” The same is true of this case, and we think it should be considered on the amended assignment of error. See Bunyan v. Loftus, 90 Iowa, 122; Buhlman v. Humphrey, 86 Iowa, 597; Stanley v. Barringer, 74 Iowa, 34. 4 II. The questions argued will be better understood by noting briefly the controlling facts and contentions. There is no dispute but that about August, 1880, the plaintiff, an orphan aged about eleven years, of foreign birth, and without means of support, wa® in the care of the Reverend Father McMenony, at Council Bluffs, for the purpose of being placed in a [483] suitable home. About that date defendants took plaintiff to. their home on a farm where they resided, and he continued to live with them on said farm, as one of their family, until about March 15, 1895. During all that time the plaintiff was supported and cared for by the defendants, and worked industriously for them on the farm. There is some conflict in the evidence asi to. the care and support that plaintiff received, and as to the amount and value of the work which he performed, but these contentions only go to the amount that he may be entitled to recover. There is evidence of various conversations between plaintiff and the •defendants, before and after he became of age, as to his compensation. It .also appears that on January 19,1895, which was after plaintiff came of age, he executed and acknowledged .ah instrument, which defendants causied to be recorded, as follows: “This is to. certify that M. Neeley and Mrs. M. Neeley have this day made a full, fair, and complete settlement with me for all work that I have done for them, or either of them, to this date, by giving me a team of horsas-and a set of double farm harness, which are described in a certain bill of sale from them to me of even date, herewith, and for which I hereby acknowledge receipt.”. Plaintiff contends that this instrument was executed without consideration and under duress. The court instructed that it was not without consideration, and submitted the question of •duressi to. the jury, .and this is assigned as error. The court also instructed that “the claim of defendants that plaintiff’s claim is barred by the statute of limitations is not supported by the evidence.” The giving of this instruction is .also assigned asierror. [483] III. Defendant’s, additional assignments of error are as follows: “(7) The court erred in overruling defendant’s motion, made at the conclusion of plaintiff’s case in chief, to withdraw from the jury all that part [484] of plaintiff’s cause of action that accrued prior to March 1, 1890, as set out in count 1 of plaintiff’s petition, for the reason that the contract under which the alleged services were rendered was not an entirety, and was for personal services, and the cause of action arising thereon is for such period barred by the statute of limitations'. (8) The court erred in refusing to give to- the jury the instructions (pages 76 and 77, Abstract) asked by the defendants, for the reason that the evidence fails to' show that the plaintiff was under duress at the time he executed the settlement in controversy. (9) The court erred in giving to the jury, on itsi own motion, instruction numbered 9}, for the reason that the evidence showed that all of plaintiff’s claim arising prior to March 1, 1890, was barred by the statute of limitation.” 6 The evidence as to the alleged duress is conflicting. If that on behalf of the plaintiff is entitled to greater weight and credit than that on behalf of the defendants, the alleged duress is established. This was a question for the jury, and therefore there was no error in submitting that issue. [484] VI. We have seen that plaintiff went to' live with the defendants about August, 1880, and continued to live with them, as one of their family, until March, 1895, and that he attained his majority April 4, 1890. Having lived with the defendants, as one of their family, the presumption is that his services were gratuitous', and to recover for the services he must overcome that presumption. This he may do- by showing “an express promise on defendant’s part to make compensation therefor, or such facts or 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 the defendant of making, compensation therefor.” See Resso v. Lehan, 96 Iowa, [485] 45. The evidence shows conversations between these parties, before and after the plaintiff became of age, with respect to his compensation. Defendants insist that plaintiff’s evidence tends to and is relied upon as showing an agreement for a compensation to be paid when he came of age, that his cause of action thereon accrued at that time, and was therefore barred at the commencement of this action, July 10,1895. They also contend that an agreement as to compensation to be therein made was entered into' when the plaintiff came of age, and that, therefore, plaintiff’s claim is not an open and continuous claim, and that all accruing prior to March 1, 1890, was barred by the statute of limitations:. The evidence as to the conversations is as follows: Plaintiff says: “There was no real bargain made about pay in 1884, but Mr. and Mrs. Feeley told me that I should get a team and wagon and harness when I was of age, .and then they again said they would give me also a piece of land. Didn’t say what land they would give me, — forty or eighty acres. I expected them to do this. * * No promise was made in 1885 about paying me for this work. * * * He said many a time, ‘I don’t want you to' work for me for nothing, Frank; I will pay you for all you do,’ and I relied upon his statements. At one time they told me they would buy a little farm called the ‘Pulley Farm,’ and would give me that, — about seventy acres. They didn’t make me any promise before 1884. In the spring of 1890, when we was hauling hay, I told him I was twenty-one the fourth of that April. I told him I wanted to go to Missouri Valley to' the machine shops. He offered to give me that land that was on the south side of the railroad tracks for what work I would do for two> years for him; and I told him, ‘Well, I don’t care, I will have that much to fall back on.’ ” In another place he states that in that conversation Mr. Feeley “insisted on my staying; [486] and said, ‘Frank, if you will stay with me two years, I will give you that strip of land on the other side of the railroad. I said, ‘That is hardly enough to keep a man busy, although it would be more than two.years’ work was worth.’ After he had insisted upon my staying so hard, I says, ‘It’s all right,’ and there it was left. Mrs. Feeley testifies as- follows: “Last winter we agreed that he had three hundred dollars after he was twenty-one. It was worth one hundred dollars a year to- take care of him until he was fifteen years old. About the time he was fifteen he agreed with us that he was to- receive his board' and clothes and to-, stay until he was twenty-one, to pay for the five hundred dollar® that it was worth to take care of him until he was fifteen. That was to be in satisfaction of the first five years. I never hear d anything about giving him a team and harness when he was twenty-one. Never said anything of the kind. Never said anything about giving him forty or eighty acres of land when he came of age. There was no talk of that kind in the house in plaintiff’s presence. When he was of age I told him he could do as he liked. He said he had to stay some place, — might as well stay with us as any place else. Told him he could stay for one hundred dollars a year and his board and clothes and tobacco. Never said anything to him about giving him the land south of the Bock Island road. Mr. Feeley testified as follows: “The agreement with Father Mac. and me and my wife was that he was to stay at our place until he was twenty-one years old. ■We were to give him clothes and board and schooling. After he was twenty-one the agreement was between’ the boy and my wife that he was to work for one hundred dollars a year and his- board and clothes and tobacco. Kept him three years and ten months under that agreement, Never heard that I was to give him [487] the land between the railroad tracks'. There was nothing' said of that kind.” Mr. Feeley further testifies: “He talked of going to Missouri Valley. I told him he could not earn his board there. That’s all that was said. Didn’t offer to give him any land if he would stay.” We do not think that this evidence, nor that of the plaintiff, taken alone, shows an express agreement as tocompensation beforeplaintiff attained his majority. They were just such assurances as it was natural should be given by way of encouragement to the boy to continue to serve the defendants faithfully and industriously. There were just such assurances as tend to prove the expectations of the parties with respect to compensation, and to disprove the presumption of gratuitous services. Defendants each testified to an agreement after plaintiff came of age, that he was to work for one ■hundred dollars a year and his board, clothes, and tobacco. If an agreement was then in fact made covering the further services, that agreement must control as to such services, and, in that event, plaintiff’s claim would not be an open and continuous account up to the time that he says he worked for the defendants, and all that preceded the agreement was barred at the time this action was commenced. Now, while we think there was nothing in the evidence to break the continuity of plaintiff’s claim up to the time that he came of age, if an agreement was made as testified to by defendants, then clearly it did not continue to the end of the services. In view of this claim and evidence of the defendants, the court should not have instructed that plaintiff’s claim was not barred by the statute of limitations, but should have submitted the question whether the alleged agreement was made, and instructed that, if made, plaintiff’s claim, prior to' the time he attained hisi majority, was barred; but that, if [488] said agreement was. not made, then no part of his claim was barred. For this error we think the .judgment of the district court must be reversed.