Hull v. Hull Bros. Lumber Co.
| Decision Date | 16 January 1948 |
| Citation | 208 S.W.2d 338,186 Tenn. 53 |
| Parties | HULL v. HULL BROS. LBR. CO. |
| Court | Tennessee Supreme Court |
Rehearing Denied Feb. 28, 1948.
Error to Circuit Court, Fentress County; Wm. I. Davis, Jr., Judge.
Suit by Ellen Hurst Hull against Hull Brothers Lumber Company, a partnership composed of Roy E. Hull and W. E. Hull, to recover for services allegedly rendered the partnership by plaintiff as a bookkeeper while she was the wife of Roy E Hull. The defendant's motion for directed verdict was sustained as to Roy Hull and W. E. Hull individually, but was overruled as to Hull Brothers Lumber Company, and issues were submitted to jury which returned a verdict of $1,050 for the plaintiff. From the judgment, both parties appealed to the Court of Appeals. To review a judgment of the Court of Appeals holding that trial judge should have sustained defendants' motion to dismiss the case, the plaintiff brings certiorari.
Judgment of Court of Appeals reversed, and trial court's judgment affirmed.
J. B. Reagan, of Jamestown, for plaintiff in error.
Ward R Case and Robt. F. Turner, both of Jamestown, and Keys & Redmond, of Crossville, for defendant in error.
The Hull Brothers Lumber Company is a partnership composed of Roy E. Hull and W. E. Hull. The plaintiff, Ellen Hurst Hull, is the former wife of Roy E. Hull. Following her divorce from her husband, she brought suit in the Circuit Court of Fentress County against the defendant Hull Brothers to recover on a contract for services alleged to have been rendered the partnership as bookkeeper. The first count of the declaration charges that she performed the services pursuant to an express contract for a consideration of $3,450, while the second count seeks a recovery on a quantum meruit basis.
It appears from the record that the case was tried upon the quantum meruit count only.
The plea of defendant avers that 'they do not owe the plaintiff anything,' and 'that plaintiff has heretofore been paid more than the reasonable value of the services rendered.' The following special plea was also interposed: 'That the services rendered by the plaintiff were rendered at the instance of, and for the defendant Roy Hull, this bookkeeping being part of his individual duties as a member of the partnership; that such services were voluntarily rendered to her husband at the time, for which there is no obligation in law to pay, and any attempt to collect same is void, as against public policy.'
At the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence, the defendant moved the Court for a directed verdict in their behalf. This motion was sustained as to Roy Hull and W. E. Hull individually but overruled as to the Hull Brothers Lumber Company. The issues were submitted to the jury under a proper charge, resulting in a verdict for $1,050 for the plaintiff.
Both parties made a motion for a new trial, the plaintiff on the ground that the amount of the verdict was inadequate and the defendant on the sole ground that the trial judge was in error in not directing a verdict in their behalf. Both of said motions were overruled and an appeal prayed and granted to the Court of Appeals. That Court was of opinion that plaintiff's services were gratuitous and that the trial judge should have sustained the defendants' motion to dismiss the case.
The conclusion of the Court is based upon the theory that the plaintiff was the wife of Roy Hull when the services were rendered and that there was no agreement that she should be paid; that she was merely doing some part of the work which was required of her husband as a member of the partnership and the work was gratuitous.
We granted certiorari and oral argument was waived. There is but one question made in petitioner's assignment of error which is, that the Court of Appeals erred in reversing the trial court 'upon the ground that there is no competent evidence upon which a verdict for petitioner could be based.'
Counsel for petitioner insists that there is material evidence to support the trial court's judgment; that under the married women's emancipation act Code, section 8460, all common-law disabilities are 'totally abrogated' and that the wife may testify as to contracts or agreements made with her husband for services rendered a partnership of which he is a member. It is further insisted that the work performed did not arise out of the marital relation, but was independent thereof and in behalf of the partnership. The whole theory of the defense is that the wife was doing her husband's work in the home and that in the absence of an express promise or agreement to compensate her the services must be regarded as gratuitous.
There is little dispute as to the nature or extent of the duties performed by Mrs. Hull. She testified as follows:
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It further appears that she did considerable work in making out income tax returns for the partnership.
There is no denial that the work as outlined by the plaintiff was fully performed as above related and that W. E. Hull knew all about it. He not only admitted knowing about her work, but stated as a fact that it continued for a period of twenty-one months. While most of the work was done in the home, there were times when Mrs. Hull had to make trips from Monterey to Crossville, Tenn., on the business of the firm.
An examination of the testimony of both Roy Hull and his brother W. E. Hull shows that prior to the time Mrs. Hull was asked to perform this service they had one Sherman Voiles employed at a salary of $75 per month. W. E. Hull was asked:
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The plaintiff testified in rebuttal that she made demands for payment for her services before she instituted her suit for divorce. Her husband Roy Hull had stated she had never demanded payment, but did the work voluntarily. While there is no proof of an express agreement that plaintiff was to be paid a specified salary, there is material evidence that her services were reasonably worth as much or more than the firm had paid Voiles. Are these services to be considered gratuitous as a matter of law? We think not.
It must be conceded that all services performed by the wife in the home and which arise out of the marital relationship must be considered as gratuitous. The cases of Taylor v. Lincumfelter, 69 Tenn. 83, and Gorrell v. Taylor, 107 Tenn. 568, 569, 64 S.W. 888, cited by the learned Court of Appeals, are not applicable although they announce a sound principle of law.
In the first case the parties, brother and sister, had lived together for forty years, during which time the brother accumulated considerable property. The sister claimed a one-half interest in the property on the score of services rendered her brother under an implied contract. Her claim was denied.
In Gorrell v. Taylor, supra, the Court denied the right of a child to recover for services rendered a parent while living in the home of the latter. It was there held that he must overcome the presumption that the services were gratuitously rendered from motives of affection and duty 'by showing either an express contract, or such exceptional facts and circumstances as...
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