Walker v. Taylor

• Decision Date: 04 February 1901
• Citation: 64 P. 192,28 Colo. 233
• Parties: WALKER v. TAYLOR.
• Court: Colorado Supreme Court

64 P. 192

28 Colo. 233

WALKER v. TAYLOR.

Supreme Court of Colorado

February 4, 1901

Error to Weld county court.

Action by William M. Taylor against John Walker, as executor of the estate of James Walker, deceased. From a judgment for plaintiff, defendant brings error. Reversed.

Action by defendant in error, as complainant, against the estate of James Walker, deceased, to recover the value of services rendered deceased in the sum of $2,130. From a judgment allowing the sum of $408 on this account, the executor brings the matter here for review on error. The record discloses that in the spring of 1881, when complainant was not quite 9 years of age, he was taken by deceased to his own home, a farm near Evans, in Weld county, and cared for. Complainant's mother had then been dead for several years, and he was taken to the home of deceased with the consent of his father. The latter remained in the neighborhood for four or five years, and then disappeared but never exercised any parental control over him after he went to live with deceased, or contributed to his support. Complainant continued to live with deceased until some time in 1890, with the exception of an absence on two occasions on one of which he remained away about one, and the other about six, months. Each of these times he left of his own motion, and voluntarily returned. While living with deceased he was treated as a member of the family, did chores and the ordinary work of a boy of his years on a farm, went to school part of the time, was comfortably clothed, and was furnished with some spending money from time to time by deceased appears to have recognized the authority of the latter to exercise control over him, and that deceased sometimes visited the school which he attended, and took a general interest in his welfare; in short, he appears to have been treated, while residing with deceased, the same as though he had been a natural member of his household. Deceased was the head of a family, which consisted of himself, his brother, and two sisters. Deceased and claimant were not of kin. Neither kept an account of services rendered or for money paid out in support of claimant There was evidence tending to prove the value of the services which he rendered deceased. The only evidence tending to prove that an agreement had been made with respect to compensation was the testimony of the twin brother of claimant, who stated that he was present when their father arranged for deceased to take and care for his brother; that deceased was to keep him until he was 21 years of age, take care of him, and pay him whatever he was worth. Deceased departed this life in the summer of 1898. Complainant does not appear to have made any claim for compensation against deceased during his lifetime.

Chas. F. Tew, for plaintiff in error.

J. C. Scott and H. E. Churchill, for defendant in error.

GABBERT J. (after stating the facts).

Where a minor enters a family, receiving those attentions and care and the ordinary necessaries which would be furnished a member by nature, he cannot recover for services rendered the head of the family during that period, unless an agreement be shown to that effect. In such circumstances the presumption of law is that his support compensates for the services he may perform. To overcome such presumption, an agreement for compensation must be established by evidence which is clear positive, and direct. Windland v. Deeds, 44 Iowa 98; Thorp v. Bateman, 37 Mich. 68; 17 Am. & Eng. Enc. Law, p. 336 et seq.; McGarvy v. Roods, 73...