Burkholder v. Burkholder
| Decision Date | 14 December 1888 |
| Parties | BURKHOLDER v. BURKHOLDER. |
| Court | Nebraska Supreme Court |
1. One A., being about 16 years of age, went to reside with B., his brother, and to continue in his service until he was 21 years old. A. continued in the service of B. until about seven months before reaching his majority, when he left his service. In an action by A. against B. to recover for the value of his services, A. testified that B. was to give him a good span of horses, harness, and wagon when he became of age, while B. testified he was merely to feed and clothe A., and send him to school during each winter. A verdict having been rendered in favor of A. for the value of a span of horses, harness, and wagon, held, that the verdict sustaining the contract as claimed by A. was supported by the clear weight of evidence.
2. But as A. had not remained in the employment of B. until he was 21 years of age, he could not recover the entire amount agreed upon, but, the matter being susceptible of computation, a reference would be ordered, to determine the amount of deduction to be made.
3. Where no objection is made in a motion for a new trial that the verdict is excessive, but there is an assignment that the verdict is not supported by sufficient evidence, this, liberally construed, will cover the point that the verdict is excessive.
Error to district court, Kearney county; GASLIN, Judge.
Action by Amos L. Burkholder against Sampson Burkholder to recover for work and labor. Judgment for plaintiff, and defendant brings error.J. L. McPheeley and J. M. Stewart, for plaintiff in error.
Tanner & McKinney, for defendant in error.
This action was brought by the defendant in error against the plaintiff in error to recover for work and labor. The plaintiff in error, (defendant below,) in his answer, alleges the facts to be that he, the said defendant, with his family, moved to the state of Nebraska during the springtime of the year 1879; that at the said time the said plaintiff was residing with his guardian in the state of Iowa; that the said plaintiff at said time ran away from his said home, and followed a brother of defendant to this state; that the plaintiff, being a brother of defendant, he (the defendant) endeavored to prevail on him (the plaintiff) to return to his said guardian, which he refused to do. That thereupon, during said spring of 1879, the said plaintiff, he being an infant, and being without a home, and wholly destitute, came to the defendant, and requested that defendant give him a home; that at the said time defendant was poor, the country was new, defendant had his farm to break out, and he had a large family depending upon him; that the said plaintiff fully understood the premises. It was then and there mutually understood and agreed by and between the plaintiff and defendant--the plaintiff having prevailed upon the defendant so to do--that defendant would take plaintiff into his family, give him a home, food, clothing, care, and attention, such as a child of defendant would reasonably be entitled to, and in consideration therefor the plaintiff should render such services as he could. That thereupon, with such mutual understanding, defendant at said time took the said plaintiff into his family, and during the said years of 1879, 1880, 1881, 1882, and 1883, gave to him a home, food, clothing, care, and attention and education, to the same extent as to the children of said defendant, and to the same extent as the ability of defendant would allow; that the same was of more value than the services rendered by plaintiff. During the year 1883 the plaintiff voluntarily left the defendant, and from said time until the commencement of this action, or any other time, has not claimed or intimated in any manner whatever that defendant was indebted to him in any sum or in any manner whatever. On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $375. A motion for a new trial...
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