Ormsby v. Rhoades

• Decision Date: 15 October 1887
• Citation: 10 A. 722,59 Vt. 505
• Parties: WILLIAM H. ORMSBY v. WARREN H. RHOADES
• Court: Vermont Supreme Court

10 A. 722

59 Vt. 505

WILLIAM H. ORMSBY v. WARREN H. RHOADES

Supreme Court of Vermont, Windham County

October 15, 1887

GENERAL ASSUMPSIT. Heard on a referee's report, September Term, 1886, WALKER, J., presiding. Judgment, that the plaintiff could recover only upon his claim, item No. 2, $ 16.20, damages, and costs be apportioned; and that he could not recover for his services, found by the referee to be worth $ 200 over and above what the defendant furnished him and interest from April 24, 1881. Exceptions by the plaintiff.

The referee found that the plaintiff's father was a brother of the defendant's wife; that the plaintiff was born in 1862, and both his parents deceased in 1870 at Troy, N. Y that in the fore part of October of that year the defendant and his wife found the boy, the plaintiff, at the Troy Orphan Asylum, where he had been taken a short time before by his Sunday school teacher, and on October 17, 1870, the defendant and his wife took the boy to their home in Windham, where he continued to live with the defendant until April 24, 1881 when the plaintiff ran away. By some arrangement (it did not appear what) with the poor-master of the city of Troy, the plaintiff was surrendered by an official of said asylum into the defendant's custody when he was first taken to his home in 1870. While the plaintiff lived with the defendant he had been made to believe that the latter was lawfully entitled to his earnings until he should become of age, and laboring under that belief, he was induced to purchase his time of the defendant, during his minority, after he left him. Item No. 2, $ 16.20, for which judgment was rendered below, was a charge for money paid to defendant under this purchase of his time. The referee found, in part:

"I do not find that the plaintiff was ever bound out or apprenticed to the defendant, or that the plaintiff was ever adopted by the said defendant, or by the said defendant and his wife, as his or their child. Neither am I able to find that there ever was any contract or agreement made and entered into by and between defendant and plaintiff, or between the defendant and any other person authorized to act for the plaintiff, in reference to plaintiff's term or manner of service, or the amount of compensation he was to receive, if any. But I do find that the plaintiff was taken by the defendant into his family, was received and treated therein as a member thereof, and so continued to be recognized and treated by the defendant and his wife so long as he remained with them. The defendant clothed the plaintiff while he remained with him--not extravagantly, but quite comfortably, and as well as farmers' boys in our hill towns will average to be clothed. No charge or account of clothing furnished was ever made by the defendant to plaintiff. The boy was sent to church, was required to attend Sunday school, and also attended the common school in the school district in which defendant resided. He was not kept constantly at school during each term, but was allowed and sometimes required to remain at home and away from school to assist about the work upon the farm. During the last few years plaintiff was with the defendant he was only allowed to attend school during the winter term, as his services at home upon the farm had become of some value to the defendant during the spring, summer and fall months. I state this fact, inasmuch as it has a bearing upon the question of the value of the services of the plaintiff done and performed for the defendant during these years. Neither was he allowed to attend the winter terms steadily, as he was required to remain at home occasionally and do work upon the farm. His opportunities for attending school, as allowed by the defendant, were just about the same as were afforded to farmers' boys, living upon hill farms, thirty to fifty years ago. Upon the trial some evidence was given tending to show abusive treatment of the plaintiff by the defendant. I find that the plaintiff was like the great majority of boys, and required correction. On two or three occasions the defendant inflicted corporal punishment upon him, but not to injure him in any way; and I find that both the defendant and his wife thought a great deal of the boy, and only punished him for his good. The plaintiff testified that he ran away because he was not well treated. I do not find that he was justified in leaving the defendant on any such ground as that assigned."

The referee also found, subject to the opinion of the court on the facts reported, that the plaintiff's services were worth $ 200 more than that which the defendant furnished him; and that he was entitled to recover that amount with interest, if anything, for his work and labor for the defendant.

Affirmed.

A. E. Cudworth and Waterman & Martin, for the plaintiff.

To sustain the claim that the defendant stood in loco parentis, the defendant must have been bound to support and educate the plaintiff during minority. 1 Bl. Com. 447; 2 Kent Com. 193.

The fact that the defendant took the plaintiff, without authority, into his family, of his own motion, could not force this artificial family relation upon the infant plaintiff so as to permit the defendant's pocketing over $ 200 earned by the plaintiff's toil.

This case dos not come at all within the rule as laid down in Fitch v. Peckham, 16 Vt. 150; Andrus v. Foster, 17 Vt. 556; Davis v. Goodenow, 27 Vt. 715; Sprague v. Waldo, 38 Vt. 139; Lunay v. Vantyne, 40 Vt. 501.

When one labors for another with his knowledge and approval the law will imply that the relation of debtor and creditor exists, except in cases where the parties at some time previous to the rendition of the services for which payment is demanded, have stood in such a relation to each other that rendering such services by the plaintiff did not make the defendant his debtor.

And neither relation by blood, nor the family relation alone, are sufficient to rebut the presumption that such services must be remunerated. Briggs v. Briggs, 46 Vt. 571.

The law will not raise an implied promise against one incapable of making a valid promise. Southworth v. Kimball, 58 Vt. 337.

The relation of the plaintiff to defendant must have come under one of these three conditions: He was a servant, or a boarder, or he was a visitor, neither bound to pay nor entitled to receive compensation. Andrus v. Foster, supra; Guild v. Guild, 15 Pick. 129.

"When the relation is that of a visitor no expectation of pay for board or incidental services exists. If either of the other relations is established an expectation of pay arises." Sprague v. Hebard, 58 Vt. 375.

L. S. Walker and C. B. Eddy, for the defendant.

The defendant stood in loco parentis to the plaintiff; and in such case, the law implies no obligation to pay for. plaintiff's services. Andrus v. Foster, 17 Vt. 556; Davis v. Goodenow, 27 Vt. 715; Lunay v. Vantyne, 40 Vt. 501; Fitch v. Peckham's Est. 16 Vt. 150. When individuals stand to each other in a family relation, as distinguished from that of master and servant, the law implies no contract for wages. Lantz v. Trey, 19 Penn. 366; Mulhern v. McDavit, 16 Gray, 404. The policy of the law is to encourage an extension of the circle and influence of the domestic fireside, and its presumptions are in favor of the existence of its relation, unless a different arrangement is proved to have been made. Williams v. Hutchinson, 3 N.Y. 312; Williams v. Williams, 132 Mass. 304. The arrangement between these parties was highly beneficial to the plaintiff. He was in no way defrauded or overreached. If it was a contract, it was for necessaries, and therefore binding. "A contract for subsistence, clothing and education, is a contract for necessaries, and if reasonable and beneficial, will be supported by law." SHAW, Ch. J., in Stone v. Dennison, 13 Pick. 6.

ROWELL, J. TAFT, J., Dissenting.

OPINION

ROWELL, J.

The plaintiff's claim, shortly stated, is this; that in order to entitle the defendant to be treated as having stood in loco parentis to him, he must have had the legal custody of his person, and have been bound to support, protect, and educate him during the time in question, which he did not have and was not bound to do; that the defendant took him from the asylum into his family of his own motion, without authority, and could not force a quasi family relation upon him, being an infant, so as to now shield himself from paying what his services were worth above what he received by way of support at his hands; that defendant can stand, therefore, only upon the ground of an agreement, express or implied; that no express agreement appears, and that, as plaintiff was incapable by reason of infancy of contracting, the law will not imply an agreement against him, as it will not imply a promise against one incapable of making a valid one; that he was clearly not a visitor in defendant's family, but was either a boarder or a servant there, and that, whichever he was, he is entitled to recover.

But it is not true that in order to entitle the defendant to be treated as having stood in loco parentis to the plaintiff he must at the time have had the legal custody of his person, and have been bound to support, protect, and educate him; and Blackstone and Kent, cited to that proposition, do not sustain it, and the cases are the other way. Thus, in the absence of any statutory provision imposing the obligation, a step-father is not bound to maintain his step-children, and consequently, is not entitled to their earnings, nor the control of their persons.--Tubb v. Harrison, 4 T. R. 118; Cooper v. Martin, 4 East 76; Freto v. Brown, 4 Mass. 675; Bartley v Richtmyer, 4 N.Y. 38; 2 Kent Com. *192--but yet he may stand in a parental relation to them;...