Disbrow v. Durand

• Decision Date: 20 June 1892
• Parties: DISBROW v. DURAND.
• Court: New Jersey Supreme Court

24 A. 545

54 N.J.L. 343

DISBROW

v. DURAND.

Court of Errors and Appeals of New Jersey.

June 20, 1892.

(Syllabus by the Court.)

Error to circuit court, Union county; before Justice Van Syckel.

Suit by Sarah A. Disbrow against James H. Durand, administrator of Smith Noe, deceased, to recover for the value of services performed as house keeper for deceased. On a judgment of nonsuit, plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by McGill, Ch.:

The plaintiff below, who is also the plaintiff in error, sued the administrator of her deceased brother's estate for the value of her services as that brother's housekeeper for the six years which immediately preceded the brother's death; that is, for the value of her services from January 1st, 1883, to January 1st, 1889. It was proved, on her behalf, at the trial in the circuit court, that the decedent resided upon and cultivated a small farm near Rahway, in Union county; that prior to 1864 his mother lived with him, and that during his mother's life his sister, the plaintiff, then a widow, came to reside with him, bringing with her her son. During the year 1864 the son, having become a man, went away and married. The mother, sister, and brother continued to live together as one family until the mother died, and thereafter the brother and sister continued to live together for more than 20 years, until the brother died in January, 1889. The brother cultivated the farm, and the sister kept the house. The sister had no means of subsistence except through work for strangers, or by continuing her home with her brother, or making it with her son. The son offered to take her, but he admits that he did not insist strenuously upon her corning to him. It was plainly apparent in the proofs that she preferred to remain with her brother. No proof was offered to show either an express or implied contract, upon the part of her brother, to remunerate her for her services in his household, or that the subject of compensation for such services was ever discussed between the brother and sister, or contemplated by either of them. Upon this case the judge at the circuit directed that judgment of nonsuit be entered against the plaintiff. Error is now assigned upon exception to that direction.

Benjamin A. Vail, for plaintiff in error.

Thomas H. Shafer, for defendant in error.

MCGILL, Ch., (after stating the facts.) Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication, from the mere rendition and acceptance of the services. In order to recover for the services, the plaintiff must affirmatively show either that an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is that the household family relationship is presumed to abound in reciprocal acts of kindness and good will, which tend to the mutual comfort and con venience of the members of the family, and are gratuitously performed; and, where that relationship appears, the ordinary implication of a promise to pay for services does not arise, because the presumption which supports such implication is nullified by the presumption that between members of a household services are gratuitously rendered. The proof of the services, and, as well, of the family relation, leaves the case in equipoise, from which the plaintiff must remove it or fail. The great majority of cases in which this exception to the ordinary rule has been given effect have been between children and their parents, or the representatives of the parents' estate; and that fact appears to have led the courts of some of our sister states to speak of it as restricted to cases where such a relationship in blood existed; but it is not perceived how, within the reason for the exception, it is to be limited by mere propinquity of kindred. It rests upon the idea...