James v. James

• Decision Date: 29 October 1912
• Citation: 151 Wis. 78,137 N.W. 1094
• Parties: JAMES v. JAMES.
• Court: Wisconsin Supreme Court

151 Wis. 78

137 N.W. 1094

JAMES

v.JAMES.

Supreme Court of Wisconsin.

Oct. 29, 1912.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Fred James against Samuel B. James. From a judgment for plaintiff, defendant appeals. Affirmed.

In 1899, when the plaintiff was about thirteen years of age, he became a member of the defendant's family. There was, so far as appears, no blood relationship between them. The plaintiff was treated as a son, and took the defendant's name, but he was not legally adopted by the defendant. About December 1, 1908, the plaintiff married and brought his wife to live in the defendant's home. At this time, the plaintiff entered into an oral agreement with the defendant to work the defendant's farm for one year. In March, 1909, the contract was reduced to writing. The plaintiff was to be paid for his services by a share of the crops, a share of the products of the milk sold, and by a share of the increase of the stock of the farm. From time to time there was trouble between the parties as to the management of the farm, and on July 9, 1909, in an altercation of this character, the defendant ordered the plaintiff from the premises. The plaintiff left the farm with his wife, and went to the home of his wife's parents. On July 12, 1909, the defendant requested the plaintiff to return to the farm to complete the contract. This the plaintiff declined to do. In December, 1909, the plaintiff began this action to recover his damages because of defendant's breach of the contract. He reduced his demand by $100, the amount he had been able to earn between July 9, 1909, and December 1, 1909. For a second cause of action he asked judgment for the value of services rendered the defendant after he became of age and before the contract in suit was made. The referee found that the plaintiff was not entitled to compensation for services rendered by the plaintiff after he became of age and before the making of the contract in suit, because the services were rendered by the plaintiff in the position of son to the defendant, that the plaintiff had lived at defendant's home as a member of the family and had received all his necessaries, and that the services rendered were gratuitous. He also found that on July 9, 1909, when the contract was breached, the plaintiff was entitled to damages in the amount which was the value of his share of the proceeds of the farm on that day, and which he had not theretofore received as his share from milk sold. Judgment was awarded by the court in accord with the findings of the referee for the value of plaintiff's share in the crops and the increase of stock on July 9, 1909. This is an appeal from the judgment so rendered.Earl P. Finch, of Oshkosh (H. E. Swett, of Fond du Lac, of counsel), for appellant.

W. J. Foulkes, of Oshkosh (W. J. Neville, of Oshkosh, of counsel), for respondent.

SIEBECKER, J. (after stating the facts as above).

[1] The referee and trial court treated the complaint as alleging a demand for damages for breach of the agreement by the defendant, and held that the measure of plaintiff's damages was the value of his share of the crops and increase of the stock at the time of such breach of agreement. The appellant assails this determination of the rights of the parties upon the ground that the plaintiff's demand in the action and the judgment awarded him is upon a quantum meruit. We are persuaded...