Krapp v. Krapp

• Decision Date: 26 March 1921
• Citation: 47 N.D. 308,181 N.W. 950
• Parties: KRAPP v. KRAPP.
• Court: North Dakota Supreme Court

47 N.D. 308

181 N.W. 950

KRAPP

v.KRAPP.

Supreme Court of North Dakota.

March 4, 1921.

Rehearing Denied March 26, 1921.

Syllabus by the Court.

In an action by plaintiff against her deceased father-in-law's estate to recover for board and lodging furnished to deceased, it is held:

In the absence of circumstances showing extraordinary services to the deceased, the presumption of gratuity arising from the relationship of the parties negatives liability upon an implied contract.

Where the evidence tends to establish that the plaintiff's husband is not a co-owner with his wife of a claim against his father's estate for board and lodging supplied, and where he is not a party to the action, he is a competent witness to a transaction between his wife and the deceased.

Appeal from District Court, Stutsman County; J. A. Coffey, Judge.

Action by Margaret Krapp against Paul Krapp, executor of the last will and estate of Johan Krapp, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Grace, J., dissenting; Robinson, J., dissenting in part, but concurring in reversal.Aylmer & Aylmer, of Jamestown, for appellant.

Knauf & Knauf, of Jamestown, for respondent.

BIRDZELL, J.

This is an action to recover for board and lodging alleged to have been furnished by the plaintiff to the deceased. A statement of the account, which is made a part of the complaint, shows that board and lodging were furnished during divers periods of time between September 20, 1913, and May 10, 1918, for which the estate is sought to be charged at the rate of $30 per month and interest from the last-named date. Prior to September 30, 1913, the deceased had been living in Iowa. That fall the plaintiff, a daughter-in-law of the deceased, and her husband, or the latter alone, induced the deceased, Johan, to come to North Dakota. At that time Johan was about 82 or 83 years of age. From that time until his death, in the month of October, 1918, the deceased lived with the plaintiff and her husband approximately 20 months. There is no claim that the services rendered to Johan were of any special or peculiar character, or that he was in any way disabled. The plaintiff, however, testified that he required more care than an ordinary person; that his room required as much care as a little child's room; that he smoked in his room, was not careful in his habits, and spat upon the floor. At the time of his decease Johan was staying with another son, Paul, who lived about half a mile distant from the plaintiff. About three weeks before he died, Johan made a will leaving practically all of his property to Paul. It seems that the relations between Paul and John, plaintiff's husband, were somewhat strained before this, and it appears that John did not visit his father during his last illness more than once, the plaintiff not at all, and that neither the plaintiff nor her husband attended the funeral. There had been some prior business relations between Johan and John, as a result of which the father took legal proceedings to collect a debt amounting to more than $3,500, and there was also some litigation between John and Paul, which resulted in a judgment in favor of the former for $140. After Johan's decease, contest proceedings were entered to set aside the will.

A settlement was later made, as a result of which Paul paid agreed amounts to the other heirs; the plaintiff's husband John receiving a cashier's check, dated August 1, 1919, for $800, which was indorsed as settlement in full for his claims against the estate of Johan Krapp. This suit was begun in January, 1920. From a judgment in the plaintiff's favor for the full amount of the claim, with interest and costs, the defendant appeals.

A number of errors are assigned, but it will be unnecessary to consider more than one or two of them. In charging the jury the court said:

“There are two kinds of contracts, an express contract and an implied contract. If the plaintiff agreed to furnish certain board and lodging for said Johan Krapp, without express terms having been agreed upon, if the same was furnished, then there would be an implied contract upon the part of the said Johan Krapp, to pay for the same what it was reasonably worth. If you find that there was an express contract or an implied contract upon the part of Johan Krapp, to pay for any lodging that was furnished, then the plaintiff would be entitled to recover for the same if she is the owner and holder of this claim, and if no part of the same has been paid. * * *

You understand that the estate of Johan Krapp, deceased, is bound and obligated to any contracts or agreements, express or implied, that were entered into and made by him prior to his death.”

[1] The appellant predicates error on the court's action in charging the jury as above. We are of the opinion that the charge is erroneous and clearly prejudicial. It is a well-established rule that services of the character of those rendered in the instant case, when performed by one member of a family for another, are presumed gratuitous. If gratuitous, it follows that the person rendering the services does not expect to charge therefor, and that the person to whom they are rendered does not expect to pay. This negatives a contract relation. The presumption of gratuitous service which arises from the relationship of the parties must be overcome, either by proof of an express contract or by proof of circumstances, such as the menial character of the services rendered, sufficiently strong to warrant an inference that compensation was intended. Bergerson v. Mattern, 170 N. W. 877. See, also, The Law of Quasi Contracts, Woodward, § 51, and cases cited; note 11 L. R. A. (N. S.) 873, 879; 11 R. C. L. 208; 18 Cyc. 412.

We are of the opinion that there were no facts shown in the instant case sufficient to overcome the presumption of gratuity and thus there is lacking any basis for liability upon an implied contract. Under this record, if the defendant is liable at all, he is liable because of an express contract. But, under the court's charge, if the jury had not believed the testimony going to establish the express contract, it would have been their duty...