Simonson v. Bergum

Esoiiweiueb, J. The claimant in this case relies upon testimony in the nature of admissions made by the deceased as a support for the verdict in his favor. One Ferdinand Voth, a former sheriff and a justice of the peace, testified that early in 1907 the deceased came to him as such justice of the peace with a complaint against Simonson. That the two came into court and something was said between them about their property rights, about the money brought to the farm and as to the salary earned while on the farm. After‘a conference they settled their differences. In response to inquiries from the witness the deceased said she owed Simon-son money and wanted to pay it, and she produced $80. Claimant said he would not take it, he wanted the $500, and that deceased then said she owed him $500 and would pay him later; that he did not remember anything being said about wages, but that it was said that Simonson had the $500 [593] when be came there. That they caroe back in May, 1907, and were married by this justice. That she t then repeated the same thing about Simonson being paid for his work and that they had gotten the money matters fixed up. One Ulverstadt was present at the interview between the parties at the same time with Mr. Yoth. His recollection of the conversation was that there had been trouble between them and deceased wanted Simonson to leave the place. Simonson said he would if he could have his money. She presented $80 which he refused, saying he wanted $500 for his work and that he was going to claim some horses. She then said that, not having money enough, she supposed whatever she had to pay she would pay, that he would get his pay after she was gone. Subsequent to the marriage Ulverstadt had conversations with the deceased in which she sometimes said Simonson did not have anything coming, and sometimes that he ought to have some pay for his work. A son of the deceased, Martin Olson, who was twenty-one at the time of the trial, was called as a witness on behalf of the claimant and testified that he did not hear his mother say anything about how Simonson should be paid and that he never heard his mother say that Simonson brought money to the farm when he came there. It appeared, however, that in February, 1915, a year before the trial, he came to the office of claimant’s attorney and was questioned and the questions and answers taken down in shorthand and written out and the same received in evidence at the trial, and that at the same time he made an affidavit; the substance of the examination and affidavit being that he knew Simonson had been a good, faithful worker on the farm during the eleven years and that everything he had earned during the time had gone into the place, and that he, Martin, had frequently heard his' mother tell Simonson that he, Simonson, would get pay for all his work that he did there, and the money he spent there, [594] out of tbe property of tbe estate after sbe was dead; that be,. Martin, tbougbt Simonson’s services were reasonably worth $300 per year besides tbe little clothing and spending money be received while there. Thus bis testimony is contradictory, indefinite, and of very little value. Tbe only testimony that can be considered in tbe nature-of indicating any express agreement between tbe claimant, and tbe deceased was'that given by Voth and Ulverstadt, and tbe principal part of that related to a time prior to the-marriage and is also very indefinite. It appears furthermore that tbe farm so occupied by tbe parties belonged to tbe children of tbe deceased Peter Olson, and was not, therefore, tbe estate of tbe deceased except as-to her dower and homestead rights and any interest- secured by the mortgage of $2,000 sbe held against the farm. Upon tbe assuming of tbe relationship of husband and wife tbe law requires tbe husband to support and provide for bis wife, such requirement being grounded upon principles of public policy, and tbe husband cannot shirk it even by an express contract with bis wife. Rowell v. Barber, 142 Wis. 304, 318, 125 N. W. 937; Ryan v. Dockery, 134 Wis. 431, 114 N. W. 820; Perkinson v. Clarke, 135 Wis. 584, 591, 116 N. W. 229. Manifestly the moment tbe marital relation is assumed the position of tbe parties in matters of this kind becomes substantially different from that existing prior thereto, and what might be considered sufficient to support a finding of a contract between tbe two for services and compensation therefor before marriage would not necessarily be sufficient to support a finding of such a contract subsequent to marriage. While it is true that tbe wife may lawfully employ her husband as agent or servant in tbe management of her separate property, yet where, as here, such contract would necessarily include so much of that which tbe husband is required [595] ■by law to do- for bis wife without compensation, there ought ■to be a very substantial showing of any such agreement subsequent to marriage. We are satisfied, therefore, from the entire testimony and the surrounding circumstances, that there is not enough in the record to support a finding that there was an express -agreement sufficiently definite so that it can be now enforced between these parties prior to the marriage as to what that compensation should be. Furthermore, it appears that at this conference they made some settlement or adjustment of their differences, but what that new contract of settlement was does not appear. This showing that there was an express contract between them takes away, any basis for a finding on the theory of an implied contract to pay the reasonable value of such services, for this would be to make a new contract for them. We are also satisfied that there is a want of sufficient evidence in the record to establish the making of a new contract after marriage between them that the services of the husband were to be compensated as though he were still a hired man, .and this especially so as to services rendered in the improvement of and on the farm of his stepchildren, who were then incapacitated from making any such a contract. . It appears that claimant did invest or loan to deceased to be invested in personal property $400 when he went there in 1903. It further appears, however, from claimant’s own testimony that he asserted the right to take possession of certain of the personal property on the theory and claim that it was his by reason of his having advanced the money to purchase the same. This assertion was made before the marriage in 1907, during the marriage, and finally, after his wife’s death, when he took some of the horses away from the administrator of the estate. He disposed of some of this property before and after his wife’s death and pocketed the [596] proceeds. This position so taken is tbe exact opposite of that he is now forced to take in order to be reimbursed for this amount from the estate. He cannot be permitted to occupy the two positions, and his claim based upon the $400 used in 1903 must also be disallowed. By the Gourt. — The judgment of the circuit court is reversed, and the action remanded to the circuit court with directions to affirm the judgment of the county court.