Flugel v. Henschel

• Decision Date: 19 November 1896
• Citation: 69 N.W. 195,6 N.D. 205
• Court: North Dakota Supreme Court

69 N.W. 195

6 N.D. 205

WILLIAM FLUGEL, JR. v. FRANK HENSCHEL

Supreme Court of North Dakota

November 19, 1896

Appeal from District Court, Cass County; McConnell, J.

Action by William Flugel, Jr., against Frank Henschel on an account. There was a verdict for plaintiff, and from an order granting a new trial, plaintiff appeals.

Reversed.

Reversed.

M. A Hildreth, for appellant.

Charles A. Pollock, for respondent.

OPINION

WALLIN, C. J.

In this case the jury returned a verdict for the plaintiff whereupon the trial court, upon its own motion, and before the jury was discharged, entered an order vacating the verdict, and granting a new trial of the action. The order recites that it is made "for the reason that the court is of the opinion that there has been by the jury such a plain disregard of the evidence in the case as to satisfy the court that the verdict was rendered under the influence of prejudice, and also for the reason that there has been such a plain disregard by the jury of the instructions of the court as to satisfy the court that the verdict was rendered under such misapprehension." To this order the plaintiff's counsel saved an exception, and the order is assigned as error in this court.

The action is upon an account, and the complaint embraces three items of account, which are severally set out as independent causes of action. The controversy in this court, as counsel concedes, turns wholly upon the third and last cause of action stated in the complaint. The item in question consists of a claim for the board, care, and maintenance of a minor son of the defendant, which service was rendered by the defendant's father-in-law under the following circumstances: The mother of the child, who was the wife of the defendant, died on the 3rd day of September, 1891 leaving the child in question, who was then about four years of age. After the funeral, the father-in-law (the grandfather of the boy) took the boy home, and kept him until April, 1895, and then the boy was taken to the house of another son, and was there kept for a period of 32 weeks. The testimony shows that the grandfather paid the boy's board during said period of 32 weeks at the rate of $ 2 a week. There is no claim that the defendant ever paid anything for the boy's keeping, or for the sum paid out by his father-in-law for the boy's board as above stated. The testimony is undisputed that the care and maintenance of the boy was reasonably worth the sum of two dollars per week. The undisputed testimony further shows that the claim in question was sold and transferred to the plaintiff before this action was brought, and that this plaintiff paid $ 275 for the claim. For this claim the jury returned a verdict for plaintiff for the sum of $ 287, the face of the claim being $ 551.25. At common law the claim of a relative for the support of a minor child, in the absence of an agreement for compensation, would not be sustained. This principle is voiced in § 99 of what is known as the "Field Code of New York," and the same provision is incorporated in the code of California. In this state the doctrine is embraced in § 2789, Rev. Codes, which reads: "A parent is not bound to compensate the other parent or a relative for the voluntary support of his child, without an agreement for compensation," etc. In this court respondent's counsel contends that there was no evidence introduced at the trial of an agreement to compensate the father-in-law for his care and support of the child. This contention presents one of the vitally important questions to be determined on this appeal. The record embraces the testimony on this point, and we give it in substance: In behalf of the plaintiff the father-in-law testified, referring to a conversation had with the defendant about three months after the death of the boy's mother: "He said, 'You pay attention to him,' and he said, 'I will settle that business after that.' After that he told me, if I would pay attention to the child for him he would settle for it. I tried to get a settlement before this suit was commenced. I wrote him a letter, and he did not mind it, and I went and told him to settle with me, and he wouldn't settle with me." On cross-examination he testified: "I took the child, and kept him there, and he never said he should take him back. I think it was about three months after that he said, 'If it wasn't for me, I would go crazy, and I would settle for this business;' and I said, 'Don't bother your head now. We can settle that after.'" The plaintiff, referring to a conversation had with the defendant in December, 1891, testified: "I had a talk with Hentchel in regard to paying for the child's support. He said that if it hadn't been for us taking the child over there, and taking care of it, he wouldn't know what he would have done; and he was willing to do something for it. This little trouble Henschel and I had had nothing to do with bringing this suit. My father tried to get a settlement with him long before this account was assigned, but he paid no attention to it." The defendant testified, in substance, that the conversation above referred to never took place, and that he never agreed to settle for the services rendered to his son. While the witnesses did not speak the English language perfectly, it seems to us that the testimony on plaintiff's part tended to establish the fact that an agreement was made some three months after the boy...