Richmire, Admr. v. Deardurff , 86 Ind. App. 31 ( 1927 )

This action is based upon a claim filed by appellee against the estate of which appellant is the legal representative; claim being for nursing and household labor performed for appellant's decedent. Claimant was a niece of decedent, but was not a member of his household. There was no express contract that claimant was to be paid for her services.

It is contended by appellant that, in the absence of an express contract to pay for the services, it will be presumed that the services were gratuitously rendered, and that there can 1, 2. be no recovery. The law is otherwise. Where the services are performed by one not a member of recipient's family, an agreement to pay may be implied from the mutual relations, the situation and conduct of the parties, and from the nature and character of the services rendered. Wainwright Trust Co.,Admr., v. Kinder (1918), 69 Ind. App. 88, 120 N.E. 419, and cases cited. The authorities cited and relied on by appellant are cases decided by this court, which have been overruled or modified by more recent decisions.

That appellee performed some of the services for which she seeks compensation is not controverted. The extent of those services and their value were questions for the jury. 3, 4. Whether those services were gratuitously rendered, was likewise a question of fact for the jury. By the verdict, the jury, guided by the court's instructions, must have found that there was an implied agreement on the part of decedent to pay the fair and reasonable value of the services rendered by appellee. There is competent evidence to sustain the verdict.

Affirmed.

Dausman, J., absent.