Kiser v. Holladay

• Decision Date: 27 July 1896
• Parties: KISER v. HOLLADAY. [1]
• Court: Oregon Supreme Court

45 P. 759

29 Or. 338

KISER v. HOLLADAY. ^[1]

Supreme Court of Oregon

July 27, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Andrew Kiser against Joseph Holladay. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover, on a quantum meruit, for work and labor done and performed between and including July 9, 1889, and July 30, 1894. The defendant denies specifically the allegations of the plaintiff's cause, and, by way of a separate defense, sets up an alleged agreement whereby, about July 10, 1889, defendant agreed to furnish plaintiff, and plaintiff agreed to accept, board and lodging at Seaside, in Clatsop county, Or., in full satisfaction of all services to be performed by him for defendant, and that defendant has so furnished him with board and lodging during all the time stated in the complaint. These facts having been put in issue by the reply, trial was had before a jury; and, the result being favorable to plaintiff, defendant appeals.

C.H. Carey, for appellant.

R Stott, for respondent.

WOLVERTON J.

The notice of appeal contains but two assignments of error, but the one relied upon and the only one urged at the hearing arises upon the following instruction: "If this plaintiff entered upon this work which he claims to have entered upon and engaged in it, and Holladay knew of it, and was further notified that the plaintiff expected compensation of some kind for it, and Holladay made no objection to it but allowed the plaintiff to proceed, then there would be an implied promise to pay for the work what it was reasonably worth. But whether there is any such fact in this case is for the jury to judge." It is predicated of this instruction that it assumes the existence of some evidence before the jury upon each of the following propositions: (1) That Holladay knew plaintiff was performing services for him; (2) that he was notified by plaintiff that he was performing services; (3) that he was also notified that the plaintiff expected compensation of some kind for it; and (4) that after being notified, he made no objection, but allowed plaintiff to proceed with his work. The contention is that there was no evidence whatever upon either or any of these propositions, and hence that it was error to instruct the jury to find whether such facts existed, as it was in effect telling the jury that the evidence submitted to them tended to the establishment of such facts. If the counsel's premises are well founded, the contention is fatal to the instruction. Of this we will inquire.

The defendant's contention at the trial seems to have been that because of plaintiff's age, having been born in 1813, he was feeble and decrepit, and unable to work or perform manual labor to any considerable extent, but, having formerly been of service to his brother Ben Holladay, he (defendant) allowed him to remain on his place, and make it his home, and furnished him board and lodging, as a matter of charity, but with the distinct understanding that he was to receive no wages for any light services that he might render about the place. Prior to the commencement of the term for which plaintiff claims wages, he had worked upon the premises, and received compensation therefor through the receiver of Ben Holladay's estate. The defendant became the owner of the premises about July 10, 1889, and for the purpose, as he says, of cutting down expenses, he notified the plaintiff, both verbally and in writing, that he could not afford to pay him any wages for work he might do on the place, but that, if he (plaintiff) wished to remain on the farm, he (defendant) would not make any charge for board or room rent. Such a notification would imply that there had been a previous service for which a liability for wages had been incurred, but plaintiff denied positively that he had ever received any such notices, and thus it became a question for the jury to pass upon. The defendant's alleged agreement with plaintiff that all services to be performed by him should be done and performed in consideration of his board and lodging seems to have been based upon these notices and the understanding of the parties at the time the notices are supposed to have been given. The testimony upon all points is very conflicting, except touching the fact that the plaintiff was furnished his board and lodging by defendant. There is strong evidence that he did considerable work in one way and another,--in taking care of defendant's stock, with which the farm was well supplied, milking a number of cows during the summer season making the butter, and doing divers and sundry chores in and about the place,--which was estimated by plaintiff's witnesses to be worth from $20 to $35 per month; and, while there was much testimony to the contrary, tending to show that his services were trivial, and of but little or no value to defendant, the question touching the extent and value thereof was for the jury to determine.

The plaintiff testified, among other things: "Joseph Holladay *** would come down every summer, and stay two or three months." Of this there was some corroboration. Further on, he says: "I did not get any wages, because I was not paid it. I claimed my wages then as well as any other man that worked there. Q. When did you make a claim for your wages in 1889, and to whom did you make a claim? Did you ever make a claim to Joseph Holladay in 1889? A. Whenever I did not make a claim for wages, it was probably for this reason: Whenever I wanted money or anything, he would furnish probably what I wanted, such as clothing and the like of that. Q. Did he ever pay you any stipulated wages in any month? A. No, sir. Q. Did you ever demand any? A. No I did not. *** Q. During that time [while Marquart was on the place], did you make any claim at all for wages? A. I did not make any claim. It wasn't my business. I did not look after the money. I looked after my stock and duties. Q. You did not care about the money at that time? A. If I wanted any, I would look after it then." Holladay testified, in substance: "I gave Mr. Kiser money in this way: He was an old man, decrepit, living off of me. I would instruct Mr. Epperly, who kept the house, and Malone, during the summer season, when the hotel was open, to let him have a little money; when he came there, to give him some money; to make him a present of it." Now, there was ample evidence to go to the jury which tended to show that plaintiff was performing services for defendant. If he was, there is evidence also tending to show that defendant had the best of opportunity of obtaining a knowledge thereof; that he was at the place in person from two to three months during the summer season of each year, and had his agents there...