Nissen v. Flournoy

Hart, J., (after stating the facts). The errors complained of are that the court erred in instructing the jury. Without quoting the language of the charge, it may be said that the court, in effect, told the jury that the plaintiff could not recover without establishing a special or express promise to pay her. The court also told the jury that the evidence showed that the relationship between the claimant and the deceased was sister and brother, and that, where this relationship exists, the law presumes that the services were rendered gratuitously and without compensation. We are of the opinion that the court erred in its instructions to the jury. It is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another’s services, the law implies a previous request and a subsequent promise. Ford v. Ward, 26 Ark. 360. It is also an elementary principle of law that the contract which the law ordinarily implies to pay for services and maintenance is not presumed between parent and child, or in any other ease of near relationship where the parties live together and create the family relation, and this well-known exception to the general rule has been recognized by this court in the following cases: Hogg v. Laster, 56 Ark. 362; Lewis v. Lewis, 75 Ark. 191, and Williams v. Walden, 82 Ark. 136. A careful reading and consideration of the decisions just cited leads us to the conclusion that, in all such cases, it is a matter for the jury to determine, from all the surrounding circumstances, whether the services were rendered under an implied contract or .not; and this doctrine we consider to be according to the better reasoning on the subject. While, in a case like this, no contract can be said to be implied by law or implied as a matter of law on the ground that a legal obligation exists because the services have 'been performed, still a contract may have been found to have existed in fact from all the circumstances and conditions proved. It was incumbent upon the plaintiff to show that she performed the services which were at the foundation of her claim, expecting, at the time, to be paid therefor, and that her brother so understood it, or that, under the circumstances, he had sufficient reason to believe that she expected pay for her services. A leading’ ease on the question, and one which is frequently cited, is Guild v. Guild, 15 Pick. (Mass.) 129. In that case, the matter was well summed up hy Shaw, C. J., as follows: “But the .court are all of opinion that practically the question is of much less importance than at first view it would appear. Those who think that the law raises no implied promise of pecuniary compensation, from the mere performance of useful and valuable services, under the circumstances supposed, are nevertheless of opinion that it would be quite competent for the jury to infer a promise, from all the circumstances of the case; and although the burden of proof is upon the plaintiff, as in other cases, to show an implied promise, the jury ought to be instructed that if, under all the circumstances of the case, the services were of such a nature as to lead to a reasonable belief that it was the understanding of the parties that pecuniary compensation should be made for them, then the jury should find an implied promise, and a quantum meruit; but, if otherwise, then they should find that there was no implied promise.” No hard and fast rule can be laid down, and every case must be governed by its peculiar circumstances. It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as by direct evidence. All the surrounding circumstances under which the services were performed may be proved. It results from our views that the court erred in substantially telling the jury that' the claimant can only recover upon an express contract, and that the relationship of brother and sister raises a presumption at law that the services were gratuitously rendered. Therefore the judgment must be reversed, and the cause will be remanded for a new trial.