Jackson's Adm'r v. Jackson

• Decision Date: 30 June 1898
• Citation: 96 Va. 165,31 S.E. 78
• Parties: JACKSON'S ADM'R . v. JACKSON.
• Court: Virginia Supreme Court

31 S.E. 78

96 Va. 165

JACKSON'S ADM'R .

v.JACKSON.

Supreme Court of Appeals of Virginia.

June 30, 1898.

Parent and Child—Action for Services— Proof of Contract.

1. Where a grandfather takes a grandchild into his home, and supports him until he attains his majority, a claim by the grandchild for services rendered must be based upon proof of an express contract with the grandfather, or on direct and unambiguous facts, from which it may be reasonably inferred that there was an express contract by which the grandfather was to pay, and the grandchild to receive pay, for the services.

2. Wages for services rendered by a minor may be recovered by the minor after becoming of age, where his father testifies that he never claimed, and did not then claim, plaintiff's wages, or anything recovered in the suit.

3. Where an infant grandchild, who is being supported by his grandfather, is told by hisgrandfather, while preparing to leave his house, that if he will stay he shall receive wages, that fact negatives any presumption that he was to receive pay for services rendered before that time.

4. Evidence that a grandfather, who had taken a grandchild into his home, and supported him until he attained his majority, said that he was a good boy; that he could not get along without him; that he should have wages; and that he intended to pay him, —does not establish a contract for wages.

Error to circuit court, Wythe county.

Action by John W. Jackson against Richard Jackson's administrator. Judgment for plaintiff, and defendant brings error. Reversed.

Blair & Blair and Pulton & Fulton, for plaintiff in error.

W. S. Pooge and M. M. Caldwell, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment to the circuit court of Wythe county in an action of assumpsit brought by John W. Jackson against Richard Jackson's administrator c. t. a. for wages for services alleged to have been rendered Richard Jackson by the plaintiff from January, 1890, to January, 1897, at the price of $15 per month.

John W. Jackson is the son of David Jackson, a son of Richard Jackson, and it appears that about January, 1890, when the plaintiff was 14 years of age, the wife of David Jackson died, leaving, surviving her, her husband and nine children, some of them of tender years, and owing to his poverty and surroundings David Jackson was compelled to put out some of his children among relatives and friends; the plaintiff being sent to the home of his grandfather, Richard Jackson, where he was received and lived as a member of his grandfather's family. It is not pretended that there was any contract between the grandfather and the plaintiff at the time that the latter was taken by the former to be cared for and raised by him, and there is absolutely no proof of any promise made by the grandfather to the plaintiff, prior to the spring of 1896, that the plaintiff would receive compensation for his labor, and there is no proof showing any facts or circumstances from which it could be reasonably inferred that any such promise was made by the grandfather. While the plaintiff lived with his grandfather, the latter had never less than two of his own sons living with him, and doing such work on and about the farm and around the house as was done by the plaintiff. Richard Jackson died in February, 1897, and plaintiff attained his majority in April following, and this suit was instituted shortly thereafter. The evidence shows that Richard Jackson not only supported the plaintiff as if he had been his own child, but at times gave him pocket money; and the only evidence adduced to show facts and circumstances from which to infer a contract between the parties prior to the spring of 1896 is to the effect that the grandfather had been heard to say that "the plaintiff was a good boy, and it was hard to do without him"; that he worked there, and was a good hand; that the grandfather paid one of his sons, about 38 years old, for labor on his farm, 50 cents per day and his board, and that plaintiff's work was worth as much as his; that David Jackson, father of the plaintiff, heard the grandfather say several times that the plaintiff should have wages, and on one occasion, while he was sick, and a few months before he died, he heard him say that "the plaintiff should be well paid for his work"; and about two months before his death this witness, David Jackson, heard him say "the boy has to be paid for three or four years' work." This witness, however, says that he could not say that the grandfather ever made any other contract with witness or with the plaintiff than that just stated; that his grandfather furnished plaintiff his board and clothes, and he lived with his grandfather as a member of his family; that witness was not paid any wages by other persons that took his children; that, his wife having died, and he having no way to raise them, he was compelled to put them out; and that he never claimed his son's (the plaintiff's) wages, and did not do so now, and did not claim anything he might recover in this case. After making the foregoing statement, David Jackson says that, "a short time after John was sent to his grandfather's, he [witness] went over there, and found John there; that he [witness] and Richard had a conversation on this occasion, and Richard said, 'If John stayed with him until he was 21 years old, and satisfied him, he would pay him for his work.' " But witness says that he kept this secret, telling no one about it. One witness testified that he sometimes worked for Richard Jackson, and last spring, a year ago, which was the spring of 1896, while working there, some difference arose between plaintiff and one of the family, and witness heard Richard Jackson say: "John, never mind that. Go on, pay no attention to it, and you shall have pay for your labor." Nobody else was present but Richard, plaintiff, and witness, and after the above conversation plaintiff continued to work for his grandfather as he had been doing. That he had known Richard Jackson, when he sent John on an errand, or John did extra work, to give him some money as pocket change, and that Richard Jackson said It was for that purpose.

Another witness for the plaintiff testified that "last spring, a year ago [which was the spring of 1896], she was at Richard Jackson's doing some work; that an altercation arose between plaintiff and some one on the place; that plaintiff was fixing to leave, and Richard Jackson sent her for plaintiff, and in her presence said to him that he, Richard, could not do without him, and would pay him for his labor if he would stay on; thatplaintiff did stay, and continued to work-, and after the will was made she heard Richard say that he owed the two Johns and Fishy Archer for their work."

Other witnesses testify to the effect that they had heard Richard Jackson say that he intended to pay John for his labor, and pay him well, or that, if the plaintiff stayed with him until he was 21 years of age, that he must be paid; but he would never pay a minor, because he was afraid the father might claim wages, —one saying that he had heard Richard Jackson say, a little over a year prior to his death, that he had to give work to the two John Jacksons, and keep money to pay them.

All of the witnesses testify that the plaintiff worked well, and that the grandfather furnished him with board, clothing, lodging, and everything he needed. J. K. Hollands-worth, administrator c. t. a. of Richard Jackson, testified that, on the morning Richard Jackson's will was written, he sent for witness to come over to his house; that while there, before dinner, witness asked about John, the plaintiff, and Richard said the plaintiff "shall have some pay"; that after dinner witness again called his attention to this, —that is, to John's pay, —and Richard said: "I will have to fix that another way"; that Captain Crockett wrote the will that day; that Richard owned a farm of 375 acres of land, on which he lived; that it was worth about $20 per acre; that the personal estate amounted to about $4,700; that he had on hand, in bank, and in good notes, about $2,000; that Richard Jackson only owed two debts that had thus far been presented to witness as administrator, —one was for $2.75, and the other was $1.94, —but there were credits on these that reduced the amount down to $1.11.

By his will Richard Jackson devised his land to his three living sons in equal shares, David Jackson, the father of the plaintiff, being one of them; charging each with the payment of $200 in five equal annual payments to the children of a deceased son of testator, and gave his personal estate to his living daughters and the children of his deceased daughters.

Witnesses for the defendant testify that they had heard the plaintiff say that there was no contract between him and his grandfather that he was to have wages; that on one occasion plaintiff left because his grandfather would not pay him wages, and remained away several days, but went back, because, as plaintiff said, it was best to go back anyhow; that Richard Jackson had been heard to say in plaintiff's presence that he was not paying him any wages, and would not as his father had brought him there for his victuals and clothes, and he (the grandfather) had taken him for pity's sake; and that if he (plaintiff) was not satisfied, he could go away.

At the trial the plaintiff asked for an in struction, which was given over the objection of the defendant, and the defendant asked for four instructions, all of which were refused; and exceptions were taken by the defendant to the rulings of the court in giving plain...