Mosher v. Kittle

Grant, J. This case was tried before the court without a jury, and comes before us on exceptions to the findings. The husband of the defendant was a farmer possessed of a'farm of 160 acres. Alfred Mosher, the assignor of plaintiff, had been for many years in Mr. Kittle’s employment as a farm laborer. January 19, 1885, Mr. Kittle conveyed the farm by warranty deed to his wife. It was subject to a mortgage of $2,000. She subsequently executed another mortgage for $1,000, $700 of which she expended in building a house. The first of April, 1885, defendant informed Alfred that she had a deed of the place, and that she wanted him to keep right on as he had done, and that she would pay him. To this Alfred made no reply, but continued to work till September 2, 1889. There was no talk between Alfred and Mr. Kittle as to the termination of his employment for Mr. Kittle. The income from the farm was used in supporting the family, in paying interest upon the mortgages, the farm expenses, and certain indebtedness of Mr. Kittle, who was aged and infirm, and did but little active work. Mrs. Kittle at times gave directions regarding farm work, and it was understood in the family that she owned the farm. The income passed mainly through the hands of their son, who lived in the family, and assumed a good deal of the control and management of the farm. At one time, Alfred wishing some money, Mrs. Kittle instructed her son to draw a load of wheat to market and pay him out of the proceeds. She made statements to the neighbors that she [347] considered Alfred in her own personal employment, and was liable to him for his wages. Alfred also considered himself in her employment. Upon these facts the court found that a contract existed between Alfred and defendant relating to her own estate, and upon which she was in law liable. It is argued, on behalf of defendant, that there was no contract in regard to her sole property; that she was not in fact carrying on the business of farming, but that the business continued in the same manner after the deed as before. We cannot concur in this view. We think the conclusion reached by the court below correct. The farm was hers. She made a payment to Alfred. She was benefited by his labor. She to some extent directed the management. Her husband had but little to do with it. It is evident that both understood that Alfred’s employment for her husband had ceased, and that he was thereafter in her employ. The husband had no interest in the farm any further than his support and the payment of his debts were concerned. But no agreement for either of these upon her part is shown. No formal termination of the contract of hire between Alfred and her husband was necessary. The burden of proof was, of course, upon plaintiff to show a contract with her, and in regard to her sole property. He satisfied these requirements by proof of a promise to employ and pay, acted upon by Alfred, and that the work was performed upon her own property and for her benefit. The judgment is affirmed. McGrath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.