Guenther v. Birkicht's Adm'r

• Decision Date: 31 January 1856
• Citation: 22 Mo. 439
• Parties: GUENTHER, Defendant in Error, v. BIRKICHT'S ADMINISTRATOR, Plaintiff in Error.
• Court: Missouri Supreme Court

22 Mo. 439

GUENTHER, Defendant in Error,

v.BIRKICHT'S ADMINISTRATOR, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1856.

1. Where a step-son continues to reside in the family of his step-father after coming of age, as before, the law will not imply a contract to pay him for services rendered.

Error to Cole Circuit Court.

The case is stated in the opinion of the court.

M. M. Parsons and H. Clay Ewing, for plaintiff in error, that no contract was implied, cited Williams v. Hutchinson, 5 Barb., S. C., Rep. 122; 3 Comstock, 312; Andrus v. Foster, 17 Vermont, 556; 5 Watts & Seg. 513; 1 Parsons on Contracts, 257.

Gardenhire, for defendant in error, cited Freto v. Brown, 4 Mass. 675; 14 Pick. 512; 4 Wend. 403; Story on Contracts, § 11; 12 Wheaton, 341.RYLAND, Judge, delivered the opinion of the court.

This was originally a claim against the estate of Henry Birkicht, for seven hundred and twenty-five dollars, in favor of Frederick Guenther, presented to the Cole county court for allowance. The account consisted of two items--one for a demand evidenced by note executed by Birkicht to Guenther, for the sum of $125; the other for four years' work and labor done for the deceased in his life-time by Guenther, at $150 per year, making $600.

The county court allowed the sum of $725, the full amount of the account against the estate, and the administrator, Ewing, appealed to the Circuit Court of Cole county.

Upon the trial of the cause in the Circuit Court at the August term, 1855, the jury found the issues for the plaintiff, and assessed his damages at the sum of $725. The administrator moved for a new trial, which being overruled, he excepted, and afterwards sued out his writ of error, and the case is now before this court on said writ of error.

From the bill of exceptions, it appears that Birkicht married the mother of the plaintiff, Guenther, who was a son by her former husband; that Birkicht moved from Germany to this state in 1841, and that his wife and his step-children moved out in 1842; that the plaintiff was sixteen or seventeen years old when he moved to this state with his mother in 1842; that he always lived with his step-father and his mother after her marriage with Birkicht, like one of the family; that he continued to live with them as one of the family until he went to California, in 1851; that he married and took his wife into the family and they lived as members of the family; that his wife had two children while living in the old man Birkicht's family; that Guenther worked as one of the family; that wages from 1847 were $150 per annum for men; and that Guenther's work was worth $150 per year. There was no proof of any promise to pay Guenther for his work--no agreement or understanding between the old man and his step-son in relation to this matter.

On the trial, the Circuit Court instructed the jury “that if they believed from the evidence that the plaintiff was the stepson of Birkicht, deceased, and performed work and labor for him after he was twenty-one years of age, the jury will allow plaintiff, in addition to the amount of the note, what such work and labor were reasonably worth, unless they find the demand is barred by the statute.” “2. If the work and labor continued up to 1851, the amount is not barred by the statute of limitations, for such an account is not barred until five years after the last work and labor is performed.”

The defendant objected to the first instruction, and asked the court to instruct the jury as follows: “That, if the jury believe from the evidence that the deceased, Henry Birkicht, was the step-father of the plaintiff, and that the deceased took plaintiff in his house while he was a minor, and the plaintiff continued to live at the house of the deceased as one of his family, the presumption of any obligation or promise on the part of deceased to pay plaintiff any thing for his services during the time he so lived with the deceased is rebutted, and it devolves on the plaintiff to prove to the satisfaction of the jury that the deceased promised to pay plaintiff for his services.” The court refused to give this instruction, and the defendant excepted.

The main question here is, upon which party is the burthen of proof to show the understanding of the parties that plaintiff should be paid for his services after coming of age? Under the instructions given for plaintiff, the jury found for him. These instructions were to the effect that, upon the proof in the case, the plaintiff had made a prima facie case for recovery.

There is no controversy as to the plaintiff's right to recover on the note. The controversy alone rests on the item for four years' work and labor. This is for work and labor after the plaintiff becomes of age.

From the facts,--the plaintiff living in the family of the deceased as one of his children, and being provided for with his wife as such,--the presumption that he was to be paid for his services, implied by law under other circumstances, is repelled, and it devolves upon the plaintiff to show affirmatively, that such was the understanding of the parties. The first instruction, therefore, given for the plaintiff did not properly declare the law in this case. The relation of step-father and stepchildren being one of very common occurrence in life, it is thought proper to notice some of the general rules and provisions of law upon this interesting subject. In the case of Williams v. Hutchinson, (5 Barb., S. C., Rep. 122,) the Supreme Court of New York held that a person is not bound to maintain the child of his wife by a former husband; nor is he entitled, by law, to claim the services of such child, unless the latter chooses to render them. But if an individual does, in fact, maintain and support his step-child, in his family, and treats him as a member of it, the law, under such circumstances, will not imply a promise to pay the step-child for the services rendered; nor will it permit a recovery therefor, unless an express promise is shown, or something to prove that such was the expectation on both sides. The fact of the step-father standing in loco parentis, effectually repels all presumption of service for hire or wages, and renders an express promise indispensable to the maintenance of an action by the stepchild. In this case, Johnson, J., in delivering the opinion of the court, said: “A person is not bound to maintain the children of his wife by a former husband. Not being bound to provide for them, or furnish them with any support, he is not entitled to their services, provided they choose to live elsewhere; and in the latter case, he cannot recover for their services, either in his own right or that of the mother. While the mother remains a widow, she is bound to provide for her children, and is entitled to control them while under age, and to collect their earnings while in the service of others. But when she marries, her legal capacity is gone--she can no longer control the person or property, or earnings of her children. This was an action for labor and services. The plaintiff's mother married the defendant when the plaintiff was about nine years old; the plaintiff then went to live with defendant with his mother. He resided there until he was about seventeen years old; he then left defendant and did not return. While he lived with defendant, he was treated, in all respects, as a member of his family--was clothed and schooled in the same manner as defendant's children were, and performed labor suitable for a person of his age and condition. There was no proof of any agreement or understanding that he was to recover wages and to account for his board, schooling and clothing, and no accounts were kept on either side. The only evidence on the subject of an understanding to pay was, that when the plaintiff and another brother were about leaving the defendant, the latter said ‘he did not wish them to leave, and was willing to pay for what they had done.’ It was a remark made by defendant in the presence of the plaintiff and his mother and other members of the family, but was not addressed to any one in particular. The court said there was no evidence in this case of any express promise to pay, and no proof that there was any expectation on either side, while the services were being performed, that payment was to be made or demanded. The remark proved to have been made by the defendant as the plaintiff was about leaving, ‘that he did not wish him to leave, and was willing to pay for what he had done,’ amounts to nothing more than the expression of a willingness on the defendant's part to pay the plaintiff for his services, if he would stay with him. It...