Story v. McCormick

• Decision Date: 01 December 1904
• Docket Number: 13,743
• Citation: 78 P. 819,70 Kan. 323
• Parties: A. M. STORY, Administrator, etc., v. MARY G. MCCORMICK
• Court: Kansas Supreme Court

78 P. 819

70 Kan. 323

A. M. STORY, Administrator, etc., v. MARY G. MCCORMICK

No. 13,743

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Error from Geary district court; OSCAR L. MOORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Stepdaughter Not Estopped from Claiming Rent. In an action brought to charge the estate of a decedent with the payment of rent for the use of a dwelling-house and several acres of productive land that had been occupied by him as a residence, in the absence of any express contract, or any contract implied in fact, the circumstances that the plaintiff, his stepdaughter, lived with him as a member of his family during the time for which rent is asked, and that until the end of the period she made no demand for rent, do not necessarily preclude a recovery and it is held, that, under the facts of this case, it was proper to submit the question of liability to the jury.

2. LANDLORD AND TENANT--Testimony of Plaintiff's Intention Admissible. In such an action it was not error to permit the plaintiff to testify that she always expected to receive rent for the property.

3. LANDLORD AND TENANT--Instructions Upheld. Under the evidence in this case it was not error to instruct that a recovery might be had if plaintiff had established by a preponderance of the evidence that defendant's decedent occupied the premises in question with the consent of plaintiff, that there was no agreement as to whether rent should be paid or not, that plaintiff expected to receive rent, and that, in view of the conduct and relations of the parties and the attending circumstances, defendant's decedent did not have good reason to believe that he was not to pay rent.

4. LANDLORD AND TENANT--Limitation of Action. In an action for the rent of property based wholly upon the quasi-contract arising by operation of law from the defendant's occupancy of plaintiff's property, without any express contract, or any contract implied in fact, no recovery can be had based upon such occupancy for any time more than three years prior to the commencement of the action.

John E. Hessin, for plaintiff in error.

Robert J. Brock, for defendant in error.

MASON J. CUNNINGHAM, GREENE, ATKINSON, JJ., concurring. JOHNSTON, C. J. concurring. SMITH, J., concurring BURCH, J., not sitting.

OPINION

MASON, J.:

In January, 1892, Mary G. McCormick, fourteen years of age, lived with her mother upon a tract of ground containing eleven acres, which she owned, having inherited it from her father. In that month her mother was married to William Worrell. From the time of the marriage Worrell and his wife lived upon the land referred to, Mary McCormick living with them. This situation continued until a little after April 30, 1901, when Worrell moved from it, Miss McCormick having written him a letter in effect asking payment of rent for the time he had occupied it. Soon afterward he died, and, an administrator having been appointed, Miss McCormick filed a claim against the estate for rent from January, 1892. The claim was allowed by the probate court, and an appeal was taken to the district court. A jury trial resulted in a judgment for the claimant in the sum of $ 638 for the use of the property from the time she attained her majority, the court by its instructions having limited the recovery to that period. From this judgment the administrator prosecutes error.

The principal question presented is whether the evidence in behalf of plaintiff was sufficient to take the case to the jury. The facts shown, so far as necessary to the decision of this question, were substantially as follows: The land was situated about half a mile from the railroad station of Zeandale. It included alfalfa ground, pasture, orchard, and garden. The improvements included an eight-room dwelling-house, a barn, and other outbuildings. The rental value was estimated by the witnesses to be from ten dollars to fourteen dollars a month. Plaintiff lived with her mother and stepfather as one of the family during the period in question, except for about eighteen months, during which time she was absent at school and on visits. She paid the taxes, insurance, and cost of painting and other repairs. She paid no board. She occupied exclusively one room. She and her mother did all the housework while she was at home. During several years a nephew of Worrell also formed a part of the family. At one time during plaintiff's minority two rooms were occupied by a Mr. Coons, and rent for them was paid to her guardian. Practically, but not absolutely, all the produce of the place was used there. Some of it was marketed. Upon one occasion a small amount of fruit was sold and the money given to plaintiff. Worrell took charge of, and managed, the property. He supplied the table for the family, but contributed nothing to the support or to the expense of plaintiff when she was away from home. A corn-crib on the place was used by him each year for storing alfalfa. Upon one occasion plaintiff wished to use it for some of her own corn, raised elsewhere, but he said that he would rather pay her five dollars than have this done, and did so, continuing to use the crib himself. The stock kept upon the place included two horses belonging to Worrell, one belonging to Mrs. Worrell, and, for a part of the time, one belonging to plaintiff. There was no agreement, oral or written, for the payment of rent, and had never been any talk about it. Plaintiff never made any claim for rent until the writing of the letter already mentioned. She testified, however, that she always expected to receive payment from her stepfather for the use of the property.

Plaintiff's claim for rent is not based upon the theory that there was an understanding between her and the defendant's decedent for its payment--that an implied contract existed that differed from an express contract only in that it required to be proved inferentially by circumstantial evidence instead of directly by positive testimony. She rests her claim upon a quasi-contract, or contract implied in law, as distinguished from a contract implied in fact. Her contention is that the law imposed the obligation to pay rent, irrespective of the intentions of her stepfather in the matter. It is said in Keener on Quasi-contracts:

"The term 'contract implied in law' is used, however, to denote, not the nature of the evidence by which the claim of the plaintiff is to be established, but the source of the obligation itself. It is a term used to cover a class of obligations where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstanding the absence of intention on his part, and in many cases in spite of his actual dissent." (Page 5. See, also, 15 A. & E. Encycl. of L., 2d ed., 1078.)

It is the contention of the administrator, the plaintiff in error, that the relation of landlord and tenant did not exist, either in virtue of any understanding of the parties, or of an obligation imposed by law; that the evidence, showing as it does that the plaintiff was a member of the family that occupied the premises, is inconsistent with such a relation. Reliance is placed upon a series of Kansas cases, of which Ayres v. Hull, 5 Kan. 419, is the earliest. It was there said:

"It may be stated, as a general principle of almost universal application, that when one person does work for another, with the knowledge and approbation of that other, the law will imply a promise on the part of the person benefited thereby, to make a reasonable compensation therefor. But, if the relation of the parties is such as to show some other inducement than a pecuniary one for the labor, then the law will not imply a promise to pay for such services. . . . So many considerations, other than those of a mere pecuniary character, enter into the minds of persons closely related in making up the family, that it would be both violent and dangerous to infer a promise from the kindly and sociable acts growing out of such relations. The family relations are too sacred to be invaded and disturbed by presumptions of law that are reasonable and proper when applied to the acts of strangers." (Pages 421, 424.)

The statute (Gen. Stat. 1901, § 3864) provides that "the occupant without special contract, of any lands shall be liable for the rent to any person entitled thereto." The evidence is capable of an interpretation showing such an occupancy of plaintiff's land by defendant's decedent as to cause him to be liable to her for rent under the terms of this statute, unless "the relation of the parties is such as to show some other inducement than a pecuniary one" for plaintiff's permitting its use. Whether such an inducement is shown in this case is a question of fact. Some portions of the testimony tend strongly to suggest a purely domestic arrangement between the parties, in disregard of all business considerations. Other portions have a somewhat contrary tendency. Considered as a whole, we do not think it necessarily negatives the idea of a legal obligation on the part of the defendant to pay rent. The situation is readily to be distinguished from that arising where, after some family disagreement, by an obvious afterthought, a member on the one hand seeks to enforce a charge for his services, or on the other is sought to be held liable for the payment of board. There the usual and natural motives of mutual helpfulness sufficiently account for the services rendered and benefits received. But it is neither usual nor natural that a young girl should, without expectation of compensation, furnish to her stepfather, in addition to her own labor, a place of residence, with farm land, orchard and garden that would go...