Coleman v. Roberts

• Decision Date: 30 April 1821
• Citation: 1 Mo. 97
• Parties: COLEMAN v. ROBERTS.
• Court: Missouri Supreme Court

1 Mo. 97

COLEMAN

v.ROBERTS.

Supreme Court of Missouri.

April Term, 1821.

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY.

MCGIRK, C. J.

Action of assumpsit, for raising and taking care of the child of the plaintiff. This cause was tried in the county of Jefferson, at the last term of the Circuit Court. Roberts, the plaintiff below had a verdict, and the cause is brought here by writ of error. The evidence is preserved by a bill of exceptions, as follows: It was proved, on the part of the plaintiff, that the defendant's infant daughter, before it could walk, at the age of eleven months, after the death of the mother, was, by the defendant, put at the house and in the care of the witness, her uncle. After the child had remained there a short time, the witness informed the defendant, the situation of his family did not make it convenient for the child to be taken care of by them; but that the plaintiff's wife (the aunt, also, of the child) had expressed a wish, and offered to take the child and raise it as one of her own children, if the defendant would consent thereto. That, on the matter being made known to the defendant, he informed the witness that the plaintiff's wife might take the child, agreeably to her wishes. This happened in the year 1807 or '8. The plaintiff kept the child at his house, as one of the family, about ten or eleven years, when the defendant took her away from the plaintiff. There was some evidence as to the manner of treating the child; there was evidence to raise the presumption, that the service in the declaration mentioned, as performed by the plaintiff and family, were voluntary, and intended as a gratuity, for which it was not the intention of either of the parties that any remuneration should be given. But as to that, no particular agreement was proved. Upon this state of the facts, the defendant in the Court below moved the Court to instruct the jury, that if they should find that at the time the child was taken by the plaintiff as aforesaid, and during the time of its continuance with the plaintiff, it was the intention of both parties that the said services should be a voluntary gratuity on the part of the plaintiff, for which he was to charge nothing, then they should find for the defendant; which instructions the Court refused to give, but instructed the jury, if they should find the services had been done by the plaintiff, at the request of the defendant, the law raised a promise on the part of the defendant, that he would pay therefor, unless they should find a positive agreement to the contrary. And then the defendant's counsel requested the Court to instruct the jury, if they should find it was the mutual understanding of the parties, at the time the child was taken by the plaintiff to keep, and during her continuance with him, the services should be a voluntary gratuity, for which the plaintiff was to receive nothing, it would be tantamount to an agreement to that effect; which instruction was also refused. But the Court replied, that it was difficult to define the meaning of the word understanding, and that it would be more easy to define what was an agreement. The defendant's counsel then requested the Court to instruct the jury, if they should find it was the intention of both the parties, at and during the time said services were rendering, that they should be rendered for nothing, but as a voluntary gratuity, that that would amount to a contract to that effect; which was also refused: but the Court instructed the jury, it would not, unless there was a communication between the parties concerning the agreement. The defendant's counsel then requested the Court to instruct the jury, that if the communication was through third persons, it was a sufficient communication to such contract. To which the Court merely remarked, that this should be left to the jury; whereupon the jury found for the plaintiff. It is now submitted to this Court, if the Circuit Court erred in refusing the instruction required, or if it erred in giving the instruction given.

If a Court refuse to give instructions, which become material on the state of a cause, it is error, though the Court is not bound to give instructions in the words asked for, however material the instructions might be. But it must take care to give the instructions substantially, so as to meet the whole of the point which is material. The Court is not bound to instruct on abstract propositions of law, not connected with the cause.^(a) The first instruction required in this case was, that if the jury found that at the time the child was taken by the plaintiff, and during its continuance with him, it was the intention of both parties the services should be a voluntary gratuity on the part of the plaintiff, and that he was to charge nothing therefor, they should find for the defendant. First, was this instruction warranted by the state of the evidence? The bill of exceptions says, evidence was before the jury to raise this presumption. It does not show how much, or how little, but there was some of a competent nature. It appears manifest, then, the instruction requested was proper, and ought to have been substantially given. What instruction did the Court give on that point? The Court said to the jury, if they should find the services had been done by the plaintiff at the request of the defendant, the law raised a presumptive promise, on the part of the defendant, that he would pay therefor, unless he should find a positive agreement to the contrary. This was, as to the first part thereof, a good abstract proposition of law, but was not warranted by the state of the case; and it is true in law, if it was the intention of both pa...