Ryan v. Lynch

• Decision Date: 27 April 1880
• Parties: ALICE RYAN ET UX., Appellants, v. CORNELIUS LYNCH, Respondent.
• Court: Missouri Court of Appeals

9 Mo.App. 18

ALICE RYAN ET UX., Appellants,

v.CORNELIUS LYNCH, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 27, 1880.

Menial service, by one received into a family as a member thereof, raises no implied promise to pay wages nor to educate.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

W. H. H. RUSSELL, for the appellants: The petition states a good cause of action.-- Loan v. Sinklan, 27 Mo. 308; Hart v. Hart, 41 Mo. 441; Hoy v. Hooker, 65 Mo. 17. There was evidence which entitled the case to go to the jury.-- Flori v. City, 3 Mo. App. 236; 39 Mo. 156; Britton v. Turner, 6 N. H. 481; Lee v. Ashbrook, 14 Mo. 378. The amount of damages in such a case is a question for the jury.-- Thompson v. Stevens, 71 Pa. St. 161; Cutter v. Powell, 2 Smith's Ld. Cas. 87.A. R. TAYLOR, for the respondent, cited: Lynch v. Bogy, 19 Mo. 170; Guenther v. Biskight, 22 Mo. 439; Gillett v. Camp, 27 Mo. 541; Morris v. Barnes, 35 Mo. 412.

HAYDEN, J., delivered the opinion of the court.

The substance of the petition is that in April, 1870, Alice Ryan, who sues here with her husband, being then a minor, the defendant proposed to her that if she would live in his family he would clothe her, take care of her, give her an education, and pay her for her services so long as she should remain in his household; that the plaintiff agreed to this, and remained with the defendant until June 20, 1877, doing household and other work, which was worth $15 a month; that the defendant refused to educate her or pay her for her services, owing to which she was damaged in the sum of $6,230. After a general denial, the answer averred that the plaintiff (Alice) being a girl without means of support and at a charitable institution, the defendant consented to receive her into his family, and did so, providing her with a home, protection, and the necessaries of life, by way of charity and in compensation for her services. The answer sets up a counter-claim for board, lodging, and articles furnished. The court below ruled that upon the evidence the plaintiffs could not recover, and they took a nonsuit.

The ruling was correct. The plaintiff made out no case. There was no evidence tending to prove an agreement, express or implied, on the part of the defendant to educate the girl or to pay her wages, nor does she appear to have thought of such a thing of her own accord. Whether the defendant's conduct was proper in not sending the girl to school, is not in question. It was not a part of the agreement by which she came to the house--if there was anything definite enough to be called an agreement--that she should receive an education at the hands of the defendant. It was not until she was living at the house that the expression relied upon was used by the defendant's wife, “that she would give her [the plaintiff] some learning.” This, like the expression, “that they would do right by her,” is too vague and indefinite to form the basis of an express promise, such as that relied on, to give the girl an education, even if this itself were not too uncertain, as specifying no kind or grade of education. There must be certainty to a common intent. Sherman v. Kitsmiller, 17 Serg. & R. 45; Graham...