Lillard v. Wilson

MARSHALL, J. The plaintiffs are husband and wife. Edward Lillard was the son of W. C. Lillard and Sarah J. his wife. W. C. Lillard died January 13, 1899, and the plaintiffs exhibited this claim against his estate for services, as nurse, rendered him and his wife, at his request. The claim is for sixty dollars a month from June 2, 1888,to January 13, 1899,aggregating $7,200, for nursing the deceased, and for forty dollars a month from January 4, 1893, to January 13,1899, aggregating $1,920, for nursing his wife. The answer denies all liability; denies that the liability, if any, is to the plaintiffs jointly, and therefore pleads a misjoinder of parties; and avers that on March 1, 1888, the deceased rented his farm, near Concordia, Missouri, to his son, Edward, the plaintiff, for three hundred dollars a year, and upon the agreement that the two families were to occupy the house jointly, each fur — 150 — nishing one-half of the provisions for family use; avers that such rental was renewed from year to year np to the death of the father, at which time it is alleged that Edward owed his father $1,225 on account of rent, and $300 on account of a note dated January, 1895, and asks judgment for those amounts. The answer also pleads the five-year statute of limitations as to all the claim prior to June 1, 1894. The case made by the plaintiffs was this: The father rented his farm to his son, Edward, on March 1, 1888, for three hundred dollars a year, and upon the further agreement that the two families should live together in the father’s house, but each was to furnish one-half of 'the necessary provisions. It also appeared that the son paid all the rent that became due. It does not appear whether there was any such note given as is described in the answer, nor, if given, whether it was paid or not. On the 2d day of June, 1888, the father was thrown from a horse and his hip was broken near the socket, and he was thereafter a cripple. Thereafter he suffered also with his kidneys and bowels to such a degree that he lost control over them, and they acted without his knowledge or intention. This trouble was so great at times that, the witnesses say, he had to be attended to like a child. He also suffered with an eczema on his leg, which had to be cleansed, treated and bandaged, often as much as twice a day. He required constant attention in these respects for the balance of his life, running eleven and a half years. He was about eighty-two or three years old when he died. His wife was also old and -weak, and suffered with asthma, and was, at times, otherwise sick, and required a good deal of waiting on. When she was able so to do, she assisted in housework to the best of her ability and looked somewhat after her grandchildren, but she was unable to, nurse the deceased. Substantially all the nursing of both the old people was done by the plaintiff, Bettie Lillard,- as was also all the housework and cooking for — 151 — both families and for the boarders and the farm hands. It was shown that the deceased many times expressed to his friends and acquaintances and to- all with whom he came in contact, his realization of his condition, his appreciation of the invaluable services that his daughter-in-law rendered to him, and his desire that she should be well paid therefor, and on one occasion he asked the doctor who had arranged the affairs of a neighbor of his, and upon being informed, requested the doctor to send the same notary to him, saying he wanted to give some or all — the- doctor was not clear which — of his land to his son and his daughter-in-law in compensation for the services they had rendered him, in nursing him, but it does not appear that the notary ever came to him, and so, no provision was thus made by him in discharge of his obligation. It does appear, however, that on the 8th of December, 1898, the deceased executed the following written instrument: “I hereby certify and state that I will and wish my son, E. W. Lillard and wife, Bettie Lillard, to be paid a reasonable sum of money from my estate; first for their kind and considerate care and attention to me during my last years of life, and also the care and attention of my beloved wife, Sarah Jane Lillard. “Witness my hand. W. C. Lillard. “Signed this 8th day of December, 1898. “Witness: “Wm. Borgstadt. “W. B. Strader.” The 'attesting witnesses said that they were called by the son to witness the instrument, and that the son produced it and showed his father where to sign it, and he did so without reading it. The court excluded the • paper, and the plaintiffs assign that ruling as part of the error complained of. — 152 — There was an abundance of testimony adduced by the plaintiffs to support their claim, including the testimony of the widow, of the doctors, the friends of the deceased, the former boarders and farm hands. At the close of the plaintiffs ’ case the defendant demurred to the evidence, the court sustained the demurrer, and the plaintiffs appealed. I. The position taken by the defendant is that there was no express contract by the deceased to- pay the plaintiffs, either jointly or separately, anything for the services, and that the circumstances -and facts shown in evidence are not sufficient to warrant an implied contract therefor, but that by reason of the relationship of the parties those services were intended to- be and must be held to be merely -gratuitous, and that so far as the-paper of December 8, 1898, is concerned, it was properly excluded, because it was executed by the deceased at the direction of his son, without reading it or knowing what it was, and because- it is a mere expression of a desire on his part that the plaintiffs should be paid a reasonable sum for their services, expressed after the-bulk of the services had been rendered, and therefore-does not show that at the time the services were being rendered either party expected the services to be paid for. Implied contracts are either implied in fact or in law. The first class arise in cases where according to-the ordinary course of business and the common understanding of men a mutual intent to contract is implied. The second class are mere fictions of law, and arise in cases where there is no evidence of intention to contract, but where, in the light of the circumstances of the case, the acts and conduct and verbal statements of the parties, the law implies a duty to pay for a.benefit con — 153 — ferred. In such case, “the intention is disregarded.” [15 Am. and Eng. Ency. Law (2 Ed.), p. 1078.] Of course there can be no recovery for services voluntarily rendered without expectation, at the time of rendition, of compensation therefor, or with the hope of being rewarded by will or otherwise, as a matter of generosity, for under such circumstances, no legal or moral obligation arises. [Id., p. 1079.] But, “it is well settled that where one performs services for another at his request, but without any agreement or understanding as to wages or remuneration, the law implies a promise on the part of the party requesting the services to pay a just and reasonable compensation, unless there is a family relation existing between the parties, and this remuneration is recoverable on a quantum meruit.” [Id., p. 1081.] So, “where services are performed by one for another either with or without the latter’s consent or knowledge, and he knowingly accepts and avails himself of those services, the general rule is that the law will imply a promise to pay a fair and reasonable compensation therefor. ’ ’ [Id., p. 1082.] Touching the subject of services rendered by members of one family to each other, the same valuable work, at page 1083, says: “Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise on the part of the recipient to pay for them; but where the services are rendered to each other by members of a family living as one household, there will be no such implication from the mere rendition and acceptance of the services. On the contrary, the presumption is that the services are intended to be gratuitous, and in oi'der to recover therefor the plaintiff must affirmatively show either that an express contract for remuneration existed or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason for this is that the house — 154 — hold family relationship is presumed to abound in reciprocal acts of kindness and good will which tends to mutual comfort and convenience of the family; and the rule stated applies not only to members of a family who are related by blood, but .to those distantly related, and to those who are in fact not related at all, provided they live together as members of one family. ’ ’ But while this is the general rule, the same work at page 1084, says: “The presumption that the services rendered by one member of a family to another were gratuitous is not a conclusive one. It may be overcome by showing an express agreement for payment, or by showing circumstances which will support the implication that the services were to be paid for. The burden is, of course, on the person rendering the services to overcome the presumption which the law raises that such services were rendered gratuitously. ” The cases that have undergone adjudication in this State illustrate the rules thus generally stated. In Whaley v. Peak, 49 Mo. 80, the deceased executor sued defendant for board, because he lived at the house of the deceased. The jury found for the defendant, and the plaintiff appealed. It appeared that the defendant was the husband of the stepdaughter of the deceased, audit was contended that the deceased had invited the defendant and his family to come and live with him., This court said: “In cases of this kind no absolute rule of law can be laid down. Whether there was an implied contract for compensation, or whether it was a mere gratuity, are questions to be determined by the jury upon the evidence, after taking into consideration the circumstances in life of the parties, the degree of, relationship and all other facts which may affect the’ case.” In Smith v. Myers, 19 Mo. 433, it was held that “where a mother-in-law performs menial services in the family of her son-in-law, it is for the jury to determine, — 155 — from all the circumstances, whether it was under an implied contract for wages, or not.” This court said: ‘ ‘ The general rule is that, whenever service is rendered and received, a contract of hiring or an obligation to pay will be presumed. This is an undoubted rule between strangers. But a relationship between the parties may exist, such as will cause the presumption that the services are acts of kindness and affection. In. all such cases, it will be a question for the jury, taking into consideration the nature and degree of the relationship, the circumstances in life of the parties, and other matters which may effect it, whether there was an implied contract for compensation.” In Guenther v. Birkicht’s Admr., 22 Mo. 439, a stepson continued to reside in the family of his stepfather, after attaining his majority, and after the latter’s death exhibited a claim against his estate for labor and work. It appeared that the plaintiff had lived with his mother and his stepfather ever since their marriage, and was treated and cared for like one of the family. This court held that the presumption that he was to be paid for his services, implied by law under other circumstances, was repelled, and it devolved upon the plaintiff to show affirmatively that it was the intention of the parties that the services were to be paid for and were not gratuitous. Accordingly a judgment for the plaintiff was reversed and the cause remanded for trial anew. In Hart v. Hart’s Admr., 41 Mo. 441, a son exhibited a claim against his mother’s estate for labor, etc. He recovered judgment below and the judgment was affirmed. This court said: “The theory of the appellant is, that where a son continues to reside with his parent after he arrives at the age of twenty-one, and performs work and labor, and renders service, he can not recover unless he shows a special or express, contract entered into with his parent for wages or compensation. This is certainly the settled rule of law in England and' in some of the States of this Union. As between stran — 156 — gers, the general rale undoubtedly is, where nothing is shown to the contrary, that whenever services are rendered and received, a contract of hiring or an obligation to pay will be implied. The mere fact, disconnected and alone, that a child resides with his parents after it has attained its majority, and performs service, will not raise an implied assumpsit. The parent is not legally entitled to the earnings of his children after they arrive at the age of twenty-one, nor is he legally bound to support them; yet if they live with him as members of his family without any contract or understanding that he shall pay for their services, or receive pay for their maintenance, the law will not imply a promise to pay on either side. [Williams v. Hutchinson, 3 Comst. 312.] But our court has held, and we consider the doctrine more in consonance with justice, that in all such cases it is a matter for the jury to determine from all the circumstances whether the services were rendered under an implied contract for wages or not. This position is also supported by many respectable authorities in other States.” In Cowell v. Roberts, 79 Mo. 218, the claimant was. a relative of the decedent’s wife, and had been raised ■and cared for by him and his wife as a member of his family. After his death she exhibited a claim against his estate for services as nurse, servant and housekeeper. The lower court decided in favor of the defendant and she appealed to this court, where the judgment was affirmed. This court said: “The doctrine that, after the attainment of majority, the promise, to support the obligation to pay, must be an express one, has not been accepted in this State. Notwithstanding the fact that family relationship in itself implies that the services are gratuitous and without the expectation of pecuniary reward, the promise tó pay may be implied from any facts or circumstances which in their nature justify the inference of an actual contract of hire or an actual understanding between the parties to that — 157 — effect.” Citing Guenther v. Birkicht’s Admr., supra; Hart v. Hart’s Admr., supra; and Smith v. Myers, supra. In Sprague v. Sea, 152 Mo. 327, the plaintiff presented a claim against the estate of one Yaile for services as housekeeper. Among other things the defendant contended that the plaintiff was a relative of the deceased and did not expect any compensation and did not intend to make any charges for her services. The court instructed the jury that they were to determine whether her services were rendered gratuitously and without expectation of reward, or under an understanding and implied contract that she would receive what her services merited. In short, whether under circumstances of this character the services were intended as a gratuity or under an implied contract for pay is a question for the jury, upon a proper showing in this State. [Kerr v. Cusenbary, 60 Mo. App. l. c. 563; Voerster v. Kunkle, 86 Mo. App. l. c. 197.] The testimony adduced in this case abundantly shows that the deceased said many times to many disinterested persons during the years when the services were being rendered to him by his daughter-in-law, that she ought to be well paid for all the drudgery she had gone through for him. His wife was old and not able to wait on him but on the contrary needed waiting on at times herself. He was crippled and sorely afflicted and needed constant attention during the day and night. His daughter-in-law rendered him efficient and faithful service. He wanted and expected her to be paid, for he said so and tried to get some one to fix up the papers for him so he could give her and his son some or all of his lands. The widow expected her to be paid and still expresses the hope that she may be paid. There is one circumstance in this case that tends strongly to take the case out of the rule that services rendered by a child to a parent, while living in the house of the parent, are — 158 — presumed to have been gratuitously rendered, and that is that though the plaintiff Edward was the son of the deceased, and the plaintiff Bettie was his daughter-in-law, and though they lived with their family in a house belonging to the deceased, and though the deceased and his wife also lived in the same house, it is not true that the plaintiffs were living in the family of the deceased. On the contrary, though the relation of parent and child existed between the deceased and plaintiffs, and though both families lived in the same house, it was not as a child lives with a parent as a member of his family, but was the result of a business arrangement whereby the son paid the father rent for the farm, and as a part of the arrangement their two families lived together in the same house, each furnishing one-half of the family supplies. This very arrangement excludes, prima facie, any idea that either expected the other to give him ‘ ‘ something for nothing,” or as a result of relationship, but that it was a matter of business between them. In no true sense, therefore, can it be said in this case that the plaintiffs lived in the family of the deceased. Under such a state of facts the question was clearly one for the jury, whether the services were intended to be gratuitous or under an implied promise of remuneration, and the trial court erred in taking the case from the jury. n. The written statement of December 8,1898, was admissible in evidence, not as showing an express contract, but as bearing upon the intention of the deceased, and upon the question of whether the services were rendered gratuitously or under an implied promise. The fact that it was executed after the bulk of the services had been rendered does not render it incompetent, for it is — 159 — merely expressive of the understanding of the deceased as to whether or not the services rendered had been rendered as a gratuity. Statements by the deceased of intention or desire to pay for services rendered by a nurse, were held admissible in the recent case of Ryans v.Hospes, 167 Mo. 342. There was ho issue or substantial proof that this paper was produced by fraud. III. The evidence shows that Bettie Lillard rendered substantially all the services that were rendered, and that Edward rendered no services of any particular value. It does not appear that there was any interest in common between Edward and his wife as to the services rendered. She was entitled to the amount claimed as the wages of her separate labor (R. S. 1889, sec. 6869), and was competent to sue for them separately ' (R. S. 1889, sec. 6864). If upon a trial anew the facts appear as they now appear, the plaintiffs, if so advised, should be permitted to amend, without costs, by striking out the name of Edward W. Lillard, and proceeding in the name of Bettie Lillard alone. For these reasons the judgment is reversed and the cause remanded to be proceeded with in accordance' herewith. All concur.