Schultz v. Andrus' Estate

• Decision Date: 10 October 1922
• Citation: 178 Wis. 358,190 N.W. 83
• Parties: SCHULTZ v. ANDRUS' ESTATE.
• Court: Wisconsin Supreme Court

178 Wis. 358

190 N.W. 83

SCHULTZ

v.ANDRUS' ESTATE.

Supreme Court of Wisconsin.

Oct. 10, 1922.

Appeal from Dodge County Court; E. H. Naber, Judge.

Action by Bell Schultz against the Estate of Jurden M. Andrus. Judgment for claimant, and defendant appeals. Reversed and remanded, with directions.

Appeal from the judgment of the county court of Dodge county, in probate, Hon. E. H. Naber, judge, in favor of the claimant and against the estate, for the sum of $353.50 damages, and costs.

During the years 1911 to 1916 the deceased, Andrus, a married man, lived separately and apart from his wife, and during such time the claimant, his sister-in-law, a widow, was his housekeeper, lived with him as a member of his family, and kept boarders. Claimant paid no rent, and received the money from the boarders, out of which she paid for the services of a maid and the provisions required by the household. It also appears that she retained, out of the moneys received for board, the sum of $190, which sum apparently represented the profits during the above period of time from keeping the boarders.

The total claim filed was for $1,270, and was based upon an express contract for services for 254 weeks at $5 per week, and this claim was credited with an item of cash paid amounting to $77, another of $25, a doctor bill paid by the deceased for the claimant, amounting to $52, and the above sum of $190 derived from the boarders, the total credits amounting to $344, leaving a balance of $926. The claim was finally allowed by the court on a quantum meruit basis, at $353.50, being for 101 weeks' services at the rate of $3.50 per week.

In the deposition of the claimant, which was taken by stipulation under an agreement that any objections to the same might be taken at the trial, to the same effect as though such evidence had been adduced from the witness upon the trial, the claimant testified, in substance, that she had entered into an agreement with the deceased, pursuant to which he would pay her the sum of $5 per week for her services. Proper objection on the trial was made to such testimony, and the same was stricken from the records. The only other testimony on the subject of an express agreement between the claimant and the deceased was given by one Mrs. Annie Duerr, who testified that a short time before the claimant left the employ of the deceased, the deceased told her that he was to pay the claimant $5 a week if she stayed with him as long as he lived. In June, 1916, the claimant was married and removed to Texas, and the deceased died in 1920.

From the judgment in respondent's favor, appellant has appealed.C. E. Hooker, of Waupun, and W. G. Haddow, of Ellsworth, for appellant.

James Murray, of Fond du Lac, for respondent.

DOERFLER, J. (after stating the facts as above).

[1] Where one renders valuable services for another, as a rule a contract to pay a reasonable value for such services will be implied. However--

“Where near relatives by blood or marriage reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or to pay compensation for the services rendered on the one hand, or for the board and lodging or other necessaries or comforts on the other; that they were intended as mutual acts of kindness done or furnished gratuitously.” Estate of Kessler, 87 Wis. 660, 664, 59 N. W. 129, 130, 41 Am. St. Rep. 74.

[2] A close relationship having existed between the claimant and the deceased, by marriage, and she having lived in the family of the deceased, performing services in and

about the household, and not being required to pay for rent or lodging, in order to enable the claimant to...