Oates v. Erskine's Estate

WiNsnow, J. The defendant’s most important contention -is that the court made fatal errors in instructing the jury as -to the proof necessary to establish the making of the express ■contract alleged. What the court said upon this point was as follows: “It is not absolutely necessary to the establishment of an ^express contract that witnesses should be produced who were present when the contract was made. It may be inferred from facts and circumstances established to the satisfaction of the jury as true by the evidence, if from such facts and circumstances the jury are convinced that the express contract -claimed by the plaintiff to have been made was in fact made.” The defendant claims that the same rule of evidence applies in this case as would apply had the parties been near relatives, namely, that such an express contract “can only be •established by direct or positive evidence, or by circumstantial evidence equivalent to direct and positive.” Tyler v. Burrington, 39 Wis. 376; Wells v. Perkins, 43 Wis. 160. The idea is plainly erroneous. The very stringent rule above -cited is a special and exceptional rule, which has been laid down by the courts in cases of services rendered or board rfurnished by one near relative to another, because in such [591] cases no contract to pay for them can be implied; but, on the other hand, there is a positive presumption that the services or board were intended to be gratuitous. To meet this presumption, and guard against the possibility of the implication of a contract by the jury in such cases, it was deemed that the exceptional rule above stated should be applied. In the absence of such relationship, however, as in the present case, there is no presumption to be overcome, and an express Contract may be shown by proof of independent facts and circumstances which convince the jury that the contract was in fact made, just as any other fact in issue may be proven by such evidence. This was, in substance, what the court charged the jury in the present case, and there was, therefore, no error. The defendant also claims that the trial court erred in giving any charge to the jury on the subject of implied contract, for the reason that there could be no recovery in the case on an implied contract to pay because it would be barred by the statute of limitations; hence the question was not in the case and instructions thereon were liable to confuse the jury. The law, as stated by the court, was certainly correctly stated; and, while there was no recovery sought on implied contract, we think the instructions were entirely proper for the information of the jury in order that they might more fully appreciate the situation of the parties. The court expressly told the jury that there could be no recovery on such a contract, and that the express contract alleged must be proven, in order to entitle the plaintiff to recover. That part of the charge pertaining to this subject, when taken together, amounts rather to a warning to the jury, fairly fending to guard them against the very natural error of thinking that they might find a verdict based on an implied agreement in case the express _ contract was not shown. The remaining contentions made by the appellant are all embraced in the claim that the evidence submitted was in [592] sufficient to prove tbe express contract alleged. We shall not review tbe evidence. It must be enough to say that, in our judgment, it was sufficient. By the Court. — Judgment affirmed.