Kulch v. Kulch ( 1946 )

In this action by plaintiff wife to recover for services alleged to have been performed by her for defendant husband and the defendant corporation wholly owned by him, she claimed that her services were of an unusual and extraordinary nature outside of the household, and' the case was submitted to the jury upon the theory of an express promise to pay, as well as upon the theory of an implied promise to pay arising from the nature of the work performed, etc. The jury rendered a verdict for the plaintiff against both defendants. While defendants moved to dismiss the complaint, the motion was not based on the contention that the plaintiff was not entitled to recover under any circumstances. Counsel for defendants obtained a charge which emphasized the right of the plaintiff to recover upon an implied contract provided that at the time the services were rendered the plaintiff expected to get paid for those services. No exception was taken to the charge of the court. Under such circumstances, the present contention of defendants that the plaintiff is not entitled to recover upon the theory of either an express or an implied contract cannot be raised on this appeal. Judgment unanimously affirmed, with costs. Present — Lewis, P. J., Hagarty, Johnston, Aldrich and Nolan, JJ. [See post, p. 883.]