Castle v. Edwards , 63 Mo. App. 564 ( 1895 )

Gill, J.

The plaintiff' in this case was formerly Lydia Brown and the granddaughter of the deceased Lydia 1. Baker, with whom she (the plaintiff) lived from September, 1881, to May, 1890, at which last date she was married to Castle. The old lady Baker was for years prior to her death a widow and resided on her farm in Andrew county. In the same house there lived, also, a portion of the time, a married daughter and husband. Mrs. Baker died in December, 1891, and in the year 1893 plaintiff brought this suit in the probate court, whereby she sought to charge her grandmother’s estate with the value of certain domestic services, alleged to have been performed from September 21, 1881, to May 24, 1890. She gave the account a lumping credit of $225, “paid at various times and in various amounts” and asked judgment for an alleged balance of $1,470.

At the conclusion of the plaintiff’s evidence, the circuit court gave a peremptory instruction for the defendant and, from a judgment in accordance therewith, plaintiff appealed.

A review of the testimony given at the trial of this case convinces us of the correctness of the trial court’s ruling. In addition to what we have already stated, it clearly appears that in 1881 the plaintiff (then a mere girl of 15 or 16 years) went to reside with her grandmother, who, thence on, assumed and continued towards her in loco parentis. She was in every respect treated as a member of Mrs. Baker’s family; was fed, clothed, protected and educated as though a daughter of the old lady. Indeed, the parental care which Mrs. Baker exercised towards her grandchild, the solicitude manifested for her education, her comfort and training, seem to have surpassed what might have been reasonably expected of those more nearly related.. We may say, then, as was said by Judge Ryland in Guenther v. Birkichts’ Adm’r, 22 Mo. 439, that: “The books are full of cases to show that, under such circumstances, the law will not imply a promise to pay for services thus rendered, or permit a recovery, unless an express promise is shown, or something to prove that such was the expectation of both sides. ’ ’ The services performed by one member of a family for another are presumed to be mere acts of gratuitous kindness, with no expectation of pecuniary reward. And before there can be recovery in such cases, this presumption must be overthrown by proof that a moneyed compensation was, at the time, intended by both parties.

We seldom pass a term without being called on to declare these principles. It is only .necessary to refer now to a few of the late cases where the authorities will be found collated. Supplementary to the Guenther case, supra, see: Woods v. Land, 30 Mo. App. 176; Callahan v. Riggins, 43 Mo. App. 130; Penter v. Roberts, 51 Mo. App. 222; Finnell v. Gooch, 59 Mo. App. 209; Dobbs v. Cates’ Adm’r, 60 Mo. App. 320.

No unbiased mind can, we think, gather from this testimony any substantial proof that pecuniary compensation was ever intended, whilst plaintiff lived in the family of her grandmother. The loose expressions of gratitude uttered by Mrs. Baker during her life are not sufficient for that purpose. More than this, there is not a syllable of evidence even tending to prove that the plaintiff ever entertained the idea that she was engaged with her grandmother for hire. It may be that there was an expectation that the old lady would, at her death, devise or bequeath the plaintiff something; but a disappointment in that direction can not be used to sustain a claim based on contract. Swires v. Parsons, 5 Watts & Searg. (Pa.) 357; Guenther v. Birkichts’ Adm’r, 22 Mo. 446.

We hold, with the lower court, that the evidence made no case for the plaintiff, and the judgment will be affirmed.

All concur.