Pool v. Pool
| Decision Date | 30 June 1913 |
| Docket Number | 728 |
| Parties | POOL v. POOL, AS ADMINISTRATOR |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Johnson County; HON. CARROLL H PARMELEE, Judge.
The material facts are stated in the opinion.
Affirmed.
Metz & Sackett, for plaintiff in error.
Failing to allege any specific promise of the decedent to pay the plaintiff for his services, the petition is insufficient. Where one performs services for another, living in and as one of the family of the latter, being provided with food clothing, lodging and care as one of the family, and there is no contract relating or providing for compensation for the services, no action can be maintained therefor. (Hay v. Peterson, 6 Wyo. 419.) There should have been a verdict for the defendant, for the evidence fails to show any contract. A son cannot recover for services performed on his father's farm while residing with and making his father's home his own home, without a specific agreement and promise to pay him wages. The jury were instructed that no specific promise was necessary, but that a mere intention, or an implication of an intention on the part of the father that the son should receive some compensation was all that was necessary to bind the father's estate. This is not the law. (Robinson v. Cushman, 2 Denio, 149; McGarvey v. Roods, 35 N.W. 488; Hinkle v. Sage (Ohio), 65 N.E. 999; Bash v. Bash, 9 Pa. 260; Duffey v. Duffey, 42 Pa. 399; Zimmerman v. Zimmerman, 129 Pa. 227, 15 Am. St. 720, 18 A. 129; Hall v. Finch, 29 Wis. 278, 9 Am. St. 559; Schmidt's Est., 93 Wis. 120, 67 N.W. 37; Coller v. Patterson, 137 Ill. 403, 24 N.E. 604; Desbrow v. Durand, 54 N. J. L. 343, 24 A. 545, 33 Am. St. 678; Wood on Mast. & Servt., Secs. 72, 75; Thorpe v. Patterson, 37 Mich. 68; James v. Gillen (Ind.), 30 N.E. 9; Starkey v. Perry, 71 Cal. 495, 12 P. 508; Gerber v. Baurline, 19 P. 849; Mobley v. Webb, 3 So. 812; Daubson v. Austin, 9 Pa. St. 309; Barhite's App., 126 Pa. St. 404, 17 A. 617; Ryan v. Lynch, 9 Mo.App. 18; Williams v. Williams, 132 Mass. 304; Smith v. Johnson, 45 Ia. 308; Wyley v. Bull, 41 Kan. 206, 20 P. 855.)
Enterline & LaFleiche, for defendant in error.
Although the plaintiff below was a son of the decedent, he was not a member of his family during the period for which he claims compensation for his services, in the sense in which that term is employed in the cases cited by opposing counsel. This case is not like Hay v. Peterson, 6 Wyo. 419. Ample evidence was introduced in this case to sustain the verdict. There is overwhelming testimony to the effect that the deceased had promised to compensate his son by giving him all of his property. The case is narrowed down to the question whether the recovery was proper upon a quantum meruit. We think clearly that the question is to be answered in the affirmative. (Norton's Est. v. McAllister, 123 P. 963.) The decedent having agreed to compensate his son in the manner suggested, the contract could not be avoided even though he destroyed the will which he made devising the property to the son. By the instructions the issue was squarely submitted whether or not there was an intention on the part of the decedent and the plaintiff that the labor of the latter and money expended by him should be paid for. The jury was properly instructed in that respect, and must have found such an intention to have existed. The fact that the decedent made a will in favor of his son tends to rebut the presumption that the latter was working for his father gratuitously. The above cases fully sustain the right of the son in this case to recover.
It is alleged in the petition filed in the court below and the evidence adduced upon the trial tends to show that Daniel J. Pool died intestate on October 3, 1911, and that during his life time he owned and resided on a farm in Johnson County, Wyoming, which he sold in August, 1910, receiving therefor $ 6,000, and removed to California. He had raised a family of children, all of whom were adults and all of whom had departed from the parental roof and were in business for themselves. Becoming old and by reason of the infirmity of age, he solicited his son, W. B. Pool, the defendant in error, to give up his business in Sheridan County in 1903 and come and work for him on the farm and relieve his father and mother, both of whom are now deceased, the wife and mother having died first on or about January 7, 1910, of the duties and cares of conducting the farm in pursuance of a contract between them that if his son would come and work upon the place and take care of the father and mother during their lifetime that the father would pay him by giving him all the property he had at his death. Such offer had been made to other members of his family, but had been refused. The defendant in error gave up his business, returned and brought with him some money of his own, which he expended in improvements on the farm, and worked upon the farm and continued to do so up to one year prior to the time of the decease of his father, when the farm was sold, appropriating, as it is alleged, the proceeds of the farm or the rent received therefrom during the last few years prior to his father's death, and caring for his father and mother during that time, and up to the time his father died. The father made a will devising all of his property to the defendant in error, with the exception of $ 25 to each of his other children, and reciting therein the reason why he so disposed of his property. This will was either lost or destroyed, but the scrivener who wrote it testified to its contents as above, and the reasons given by testator, in conversation at the time of writing the will, for the manner of his disposition of the property. Upon the decease of the father, George H. Pool procured himself to be appointed administrator of the estate, and his brother, the plaintiff, filed his claim, duly verified, for the sum of $ 3,579.27, for work and labor performed at the request of and during his father's lifetime at the rate of $ 40 per month, and for items of expenditure, which claim was disallowed by the administrator, whereupon this action was commenced upon a quantum meruit. The case was tried to a jury and a verdict was rendered for the sum of $ 2,000 in favor of W. B. Pool, plaintiff below and defendant in error here, and judgment rendered thereon for said sum and costs. The administrator brings error.
It is assigned as error that the petition does not state facts sufficient to constitute a cause of action, and that the proof is insufficient to warrant a recovery. It is contended by the administrator that the case upon the facts falls within the rule announced by this court in Hay v. Peterson, 6 Wyo. 419 at page 423, 45 P. 1073, 34 L.R.A. 581, and which is as follows: "If the person performing such services lives in and is one of the family of the other, for whom the services are performed, being provided with food, clothing, lodging and care as one of the family, and doing labor and work for such other person, and, as a matter of fact, there is no contract between them relating to or providing for any compensation to be paid for such work and labor, then no action can be maintained." The inapplicability of the rule to the facts here is apparent. Here an express contract was proven, that is to say, if the son would return to the parental roof, and work for his father and mother during their lifetime, then the father would give him all of his property at the time of his death. Upon this question the scrivener who wrote the will at the request of decedent testified to a conversation had with him at the time he made the will, as follows:
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