Lippman v. Tittmann

Rombatxeb, P. J., delivered the opinion of the court. Mrs. Ballentine died in 1866, leaving four surviving children of tender age. • Her husband Alexander, being unable to take care <1 them, three of the children were placed in a charitable institution, and the fourth, who [72] is the decedent, Wm. Ballentine Becker, then a child in arms, was taken into the family of Wm. Becker, and reared as a child of that family. Thereafter Alexander Ballentine, the father, was killed in a railroad accident, and Wm. H. Thompson was appointed guardian of the persons and curator of the estate of the four children. As such guardian he recovered four thousand dollars, in the year 1870, from the railroad company, being one thousand dollars for each of the children. This appears to have been their only estate. He acted as such guardian and curator until the three other children arrived at age, and then accounted to them as such. The residue of the share of Wm. Ballentine Becker, he paid to the defendant administrator, after the decedent’s death in 1886. Wm. Becker died in 1878, leaving a family of children. The plaintiff, a friend of the family, thereupon took Becker’s children into his custody, including Wm. Ballentine Becker, and reared them all as members of his own family. There was at no time any express contract between the plaintiff and the curator Thompson, as to any compensation which the plaintiff was to receive for the rearing and maintenance of Wm. Ballentine Becker, nor did the plaintiff at any time prior to the year 1881 suggest to the curator the question of compensation. In March, 1881, the plaintiff’s financial condition having become materially changed, he approached the curator stating such fact, and requesting that he make some allowance for the support of the child, and the ■curator thereupon gave him one hundred and fifty dollars, out of money of the child in his hands. He paid to him like amounts in August, 1882, in June, 1883, in August, 1884, and in July, 1885, taking from Mm .receipts in the following form : “Received of Wm. H. Thompson, one hundred and fifty dollars, account necessary expenses for sustenance of his ward, Wm. T. Ballentine. “ Lewis Lippmaít.” [73] The amounts thus paid, aggregating seven hundred and fifty dollars, were allowed by the probate court to Thompson as proper credits in his final settlement with the decedent’s administrator. In January, 1887, plaintiff presented the following account for allowance against the decedent’s estate, in the present action: “ To boarding, clothing, schooling, and care of deceased, from September, 1878, to September, A. D., 1885, seven years, at $150 per year____$1,050 00 To cash paid expenses for deceased, in sending him to Denver, Colorado, on recommendation of physician, for the recovery of his health, and maintaining him while there, from September, 1885, to April, 1886... $400 00 To care, support, and maintenance of deceased in St. Louis, from April, 1886, to August, 1886, during his last sickness, at $50 per month.. $200 00 To physician’s bill paid for deceased, from September, 1878 to September, 1885........................$ 100 00 Total amount due...............$1,750 00 Cr. March 16th, 1881, by cash from curator, on account of maintenance.! 150 00 August 3rd, 1882......... 150 00 June 5th, 1883.'.................... 150 00 August 26th, 1884................... 150 00 July 2nd, 1885...................... 150 00 Total..........................$ 750 00 Balance due..................; ..$1,000 00” The account was rejected by the probate court, and [74] upon trial in the circuit court on appeal, the facts above-recited appearing in evidence with proof of the reasonableness of the charges in the account and the necessity of the expenditures, the court instructed the jury that plaintiff could not recover. The plaintiff thereupon took a nonsuit, and after an ineffectual motion to have the same set aside, brings the case here by appeal. It will thus be seen that the only question presented for our consideration is, whether the plaintiff presented any evidence which entitled him to go to the jury, or whether upon the conceded facts he has no cause of action whatever, as a matter of law. The rules of law which furnish an answer to this question are very simple. On the one hand, it is plain that the plaintiff was under no legal or moral obligation to support the child, and was, therefore, entitled to compensation for so doing, provided he did it under circumstances from which a promise to pay can be implied. Trainer v. Trumbull, 141 Mass. 527. On the other hand, it is equally plain that no promise can be implied contrary to the intention of the parties. Folger v. Heidel, 60 Mo. 284; Cowell v. Roberts, Executor, 79 Mo. 218, 221; Aull Sav. Bank v. Aull's Adm’r, 80 Mo. 199, 202. To that extent it is immaterial whether or no the plaintiff as to the child stood in loco parentis, as that relation, in the absence of legal adoption, subjects him to no legal duty of support. Sharkey v. McDermott, 16 Mo. App. 80. Applying the law thus stated to the facts- appearing in evidence, it seems clear that the plaintiff has offered no evidence tending to show that he took the child into his family intending to charge for its support. On the contrary, the evidence admits of no other construction, but that the intention to charge for such support was first entertained by him in 1881, when, owing to his altered financial condition, the burden became one which he considered too onerous to bear alone. But since' he was under no obligation to support the child, he was at liberty to change that intention at [75] any time. He could not change his intention so as to relate back to past expenditures (Folger v. Heidel, supra; Hoolan v. Bailey, 30 Mo. App. 585), but might' change it so as to affect expenditures thereafter incurred.That he did do so, and that he advised the curator of that fact, sufficiently appears from the evidence to entitle' him to go to the jury. In conclusion we state that, while the plaintiff’s evidence fails to support the first item of his account as to dates anterior to March 16, 1881, and shows by the credits in the account that he has no claim on that item remaining unpaid prior to March 16, 1886, and that, while the evidence debars him of all claim even on the last item of his account prior to March 16, 1881, there was evidence which entitled him to go to the jury on' the residue of his account. The court, therefore, erred in withdrawing the case from the jury. Judgment reversed and cause remanded. All concur.