Whaley v. Peak

• Citation: 49 Mo. 80
• Parties: FRANKLIN WHALEY AND HENRY C. WHALEY, EXECUTORS OF WM. WHALEY, Plaintiffs in Error, v. THOMAS F. PEAK, Defendant in Error.
• Decision Date: 31 October 1871
• Court: United States State Supreme Court of Missouri

49 Mo. 80

FRANKLIN WHALEY AND HENRY C. WHALEY, EXECUTORS OF WM. WHALEY, Plaintiffs in Error,

v.THOMAS F. PEAK, Defendant in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Marion Circuit Court.

Dryden & Dryden, with Lipscomb & Hageman, for plaintiffs in error.

Anderson and Boulware, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs, as executors of William Whaley, deceased, brought their action against defendant for the reasonable value of board and lodging alleged to have been furnished defendant and his child by the testator in his lifetime. The answer of defendant denied all indebtedness, and averred in substance that the defendant and his wife and child, during the time for which board was claimed, were at the house of William Whaley as members of his family and household, and that they were so inmates and members at Whaley's solicitation and request. The answer then further sets out in detail the circumstances under which defendant went to reside with the testator, Whaley, and set up a counterclaim to the plaintiffs' demand. So far as the counter-claim is concerned it need not be particularly noticed, as it was in effect withdrawn. The important inquiry is, was there any implied promise that would support an action against the defendant? The trial was had before a jury, and under the evidence and instructions the verdict and judgment were for the defendant. The facts are, concisely, that the wife of the defendant was the daughter of Mrs. Whaley and stepdaughter of the testator; that she had, after the intermarriage of her mother and the testator, been brought up in the family and educated and treated as the other children of the testator's family, till her marriage with the defendant, when she and her husband moved off and went to keeping house. The testator's children all left him with the exception of one son, and he resided on a farm and attended to it himself. Whaley and his wife were both old and infirm, and Mrs. Whaley was afflicted and unable to attend to the duties of the household; and she was very anxious that her daughter, the defendant's wife, should remove to their house to live, that she might have her society and assistance. With this view Whaley and wife addressed a letter to the defendant's wife, importuning her and her husband to break up housekeeping and take up their residence with them. The defendant opposed the proposition, and was unwilling to give up his business, in which he was realizing a considerable profit. The daughter, however, further inquired as to the terms and manner in which it was expected they would come and reside with the testator and wife. In response she received a letter addressed to her and her husband, written by the testator, Whaley, and signed by him and his wife, in which it is said: “Dear Children--Well, now, Thomas and Hattie, in a few words I will tell you how I expect you to stay with us for two years, if you can be satisfied to do so. I will ask you to do what you can to assist us along with our labor, enough at least to pay moderate board, whenever your health and circumstances will allow you to do so, but do not wish you to think of making anything like regular days' or weeks' work. You, Thomas, need rest from your business, at least one year, and you will find it profitable in more ways than one. Moderate labor on a farm, at what you can perform without much fatigue, at short intervals, would, I suppose, benefit you both in body and mind. We old folks must do something, or have something done, in order to keep us while we are in this world--try and keep a home, and have our home keep us. To labor constantly now we cannot, but we can get others more able than ourselves to help us. I would like to have you come down, if you are willing to try the change.”

In accordance with this proposition, the defendant and his wife broke up housekeeping; he abandoned his business, and they took up their residence in the family of Whaley, where they continued until...