Browning V. Bailey.

• Decision Date: 07 April 1924
• Docket Number: No. 14793.,14793.
• Citation: 261 S.W. 350,216 Mo. App. 122
• Parties: BROWNING, v. BAILEY.
• Court: Missouri Court of Appeals

261 S.W. 350

216 Mo. App. 122

BROWNING, v. BAILEY.

No. 14793.

Kansas City Court of Appeals. Missouri.

April 7, 1924.

Rehearing Denied May 5, 1924.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

Action by Rebecca Browning against Halbert Bailey. Judgment for plaintiff, and defendant appeals. Affirmed.

Wright & Ford, of Maryville, for appellant.

McCaffrey & Cook, of Maryville, for Respondent.

ARNOLD, J.

This action is based upon a verbal contract whereby plaintiff seeks to recover the sum of $56.50 alleged to be due from defendant for board.

Plaintiff is the wife of W. R. Browning, and defendant is a farmer living on a farm near Quitman in Nodaway county, Mo. The petition alleges that on February 1, 1922, the defendant engaged board of plaintiff, verbally agreeing to pay therefor the usual and customary charge for such board; that under and by virtue of said contract, plaintiff undertook to furnish, and did furnish, board to defendant from the said 1st day of February, continuously, until August 15, 1922. Further, the petition alleges that the usual and customary charge for such board was, and is, the sum of $20 per month, making an aggregate sum of $130 for the period named; that there was a credit of $73.50, leaving $56.50 unpaid, which is the basis of this suit.

The answer is a general denial and avers that plaintiff was the wife of W. R. Browning and living with him as his wife, and that "on or about the 1st of February, 1922, defendant entered into a contract with the said W. R. Browning, the husband of this plaintiff, whereby the said W. R. Browning was to enter the services of this defendant as a farm hand and was to receive as compensation therefor the sum of $35 per month, and in addition thereto the defendant was to furnish the said W. R. Browning a house in which he might take his wife, this plaintiff, and his family to live during said employment, and was also to furnish the said W. R. Browning a garden patch and allow him all the firewood needed while so employed, and all the milk, cream, and cream with which to make butter as needed, eggs and chickens for table use for his family, and also certain household and kitchen effects then in said home and belonging to defendant, and also to allow the said Browning one-half the proceeds of all cream, butter, and eggs sold from cows and chickens owned by defenlant. As a further provision of said contract of employment, the said W. R. Browning was to board the defendant, for which defendant was to pay the said W. R. Browning the further sum of $3.50 per week. "Defendant further states that under and by virtue of said contract the said W. R. Browning did enter the services of defendant and moved his said wife and family to the farm then in the possession of and operated by the defendant, and that under and by virtue of said contract defendant boarded with the said W. R. Browning from about the 1st day of February, 1922, until about the 16th day of August, 1922. Defendant further states that he has fully paid the said W. R. Browning for said board as agreed by said parties to said contract."

At the close of all the evidence, defendant asked an instruction in the nature of a demurrer, which the court refused. The case was submitted to the jury, and verdict and judgment were in plaintiff's favor. Motion for new trial was unsuccessful, and this appeal followed.

First, it Is charged that the court erred in refusing to sustain the demurrer offered by defendant. It is insisted that—

"The service of the wife belonged to the husband, and she could not recover for her services in the absence of affirmative proof of a waiver of his rights."

We have examined the citations given by defendant in support of this contention, but it will not be necessary to review all of them. The case chiefly relied upon is that of Plummer v. Trost, 81 Mo. 425. The holding in that case was to the effect that services performed by a wife for another for compensation are presumed to be given on the husband's behalf. The opinion further states that this was the common-law rule which at that time had not been changed by statute, and to rebut such presumption the wife must show that the services were rendered...