Hart v. Hess

• Decision Date: 31 October 1867
• Citation: 41 Mo. 441
• Parties: JAMES HART, Respondent, v. CHARLES H. HESS, Public Administrator of St. Charles County, having in charge MARY HART'S ESTATE, appellant.
• Court: Missouri Supreme Court

41 Mo. 441

JAMES HART, Respondent,

v.CHARLES H. HESS, Public Administrator of St. Charles County, having in charge MARY HART'S ESTATE, appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from the Sixth District Court.

Kingsberry & Hess, for appellant.

I. The Circuit Court erred in admitting the declarations of Mrs. Hart. They were not declarations against her interest so that they would have been admissible in favor of claimant in a suit against her while living; they are not evidence of any contract to pay plaintiff for services--are not admissions of indebtedness-are mere expressions of a consciousness of moral obligation--of gratitude. They did not tend to show that mother and son had an understanding or contract that services were to be rendered for wages, or wages paid for services--Dyer v. Ainsworth, 9 Barb. 619. Such declarations were illegal evidence tending directly to mislead the jury--2 Grah. & Wat., New Tri. 644-5; Weeks v. Lowerre, 8 Barb. 630.

II. The court should have granted the instruction asked by defendant--Add. on Cont. 428-9; Ridgway v. English, 2 Zabris. (N. J.) 409; Oxford v. McFarland, 3 Ind. 156; Sprague's Adm'r v. Waldo's Adm'r, 38 Vt. 139; Condor's App., 5 Watts & Serg. 513.

III. The instruction granted by the court was erroneous because it does not lay down the general principle of law in reference to contracts of hiring correctly. “The law is,” says the instruction, “that where services are rendered and received a contract of hiring or an obligation to pay will be presumed.” This is not correct in not limiting its application to strangers-- Add. on Cont. 428; 1 Pars. on Cont. 529. And it is not cured by what follows: “But a presumption may arise from the relationship of the parties that the services rendered are acts of gratuitous kindness.” As applied to this case of relationship of parent and child, a presumption does arise that the services are gratuitous. The instruction is not explicit (3 Grah. & Wat., New Tri. 773, et seq.,) and does not state the law correctly--Lovell v. Brice,--Wright, 89; Andrews v. Foster, 17 Vt. 556; Resor v. Johnson, 1 Cart. (Ind.) 100; Zerbe v. Miller, 16 Penn. 481; Miller v. Miller, 16 Ills. 296; Munxeo v. Munger, 33 N. H. 581; Weir v. Weir's Adm'r, 3 B. Mon. (Ky.) 645; Smith v. Myers, 19 Mo. 433; Guenther v. Birkicht's Adm'r, 22 Mo. 439; Morris v. Barnes' Adm'r, 36 Mo. 412; Dye v. Cerr, 15 Barb. (N. Y.) 444; Mosteller's App., 30 Penn. 473; Leavy v. Leavy, 37 N. H. 125; Murdock v. Murdock, 7 Cal. 571; Swartz v. Hazlit, 8 Cal. 118; Hack v. Stewart, 8 Barb. 213; Walkers' case, Rawle, 243; King v. Low, 1 Barn. & Ald. 181; Davies v. Davies, 9 C. &. P. 87.

Wm. A. Alexander, for respondent.

The question in this case is, can a son recover from his mother's estate, for work and labor, without proof of an express contract? The respondent maintains that a recovery may be had or an action sustained on an implied as well as on an express contract; and that when such facts and circumstances are proven to a jury as to satisfy them that compensation was expected by both parties, or that the work was done under such circumstances as to render an expectation of pay reasonable and natural, a recovery may be had, and that in all cases of this character it is for the jury to determine from all the facts and circumstances of each particular case, whether there was an implied contract or expectation of compensation between the parties. The instruction given by the court declared the law favorable to appellant--Smith v. Myers, 19 Mo. 433; Guild v. Guild, 13 Pick. 130; Miller v. Miller, 18 Ills. 296.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding originally instituted in the Probate Court of St. Charles county. The respondent presented his claim against the estate of his mother, Mary Hart, deceased, for work and labor done and performed, and services rendered for the period of six years, and on an issue submitted to a jury had a verdict in his favor. An appeal was taken to the Circuit Court, where upon a trial before a jury the plaintiff had another verdict. The case was then carried to the District Court, where the judgment was affirmed.

The giving and refusing of instructions, and the admitting of illegal evidence, are the errors complained of. The evidence substantially shows that James Hart, the respondent, continued to reside with his mother after he had attained the age of twenty-one years and until her death, being a period of about six years; that he took charge of the small farm on which she resided, doing most of the work, and by his labor supported and maintained the family, which consisted of his mother and two sisters. The other brothers had gone away from home. When there was nothing to do on the farm he hired himself out, frequently giving the wages which he received for such services to his mother. The value of his services while he so continued to work for his mother was proved, but there was no evidence of any express contract that he should receive compensation therefor. Evidence was admitted that the mother had declared on different occasions, that James gave her money; that he supported the family for the last six years, and if it was not for him they would suffer, and that she did not know how she could have got along without him. This evidence was objected to.

The court then instructed the jury, that, “where services are rendered and received a contract of hiring, or an obligation to pay, will be presumed; but a presumption may arise from the relationship of the parties that the services rendered are acts of gratuitous kindness. And in this case, it is a question for the jury, taking into consideration all the circumstances, including the nature and degree of the relationship and the circumstances in life of the parties, whether there was any implied contract for compensation; and if the jury believe from the evidence that these services rendered were acts of gratuitous kindness, then there was no implied contract and the plaintiff could not recover.” This instruction was objected to; and the court refused the following instruction asked for the appellant: “If the jury believe from the evidence that James Hart was a member of the family of Mary Hart, and that as such member of the family he worked on the place, then, unless the jury further find from the evidence that a special contract for wages was entered into by and...