Miller's Appeal

Mr. Justice Trunket

delivered the opinion of the court, October 2d 1882.

Implied contracts are such as reason and justice dictate, and which the law presumes from the relations and circumstances of the parties. Nothing is better settled than that the performance and receipt of services, or the furnishing of board, raises an implied assumpsit by the one who receives to compensate the other, yet this implication may be rebutted by proof of facts which repel the idea of a contract. Ordinarily parents and children do not expect to pay or receive payment for acts of kindness to each other, nor do other members of a family. For services rendered by members of a family to each other no promise is implied for remuneration, because they were not performed in the expectation, by either party, that pecuniary compensation would be made or demanded. No action can be maintained for such services in the absence of an express contract or engagement to pay for them: Updike v. Titus, 2 Beasly 151; Smith v. Milligan, 13 Pa. St. 107 ; Butler v. Slam, 50 Pa. St. 456; Douglas’ Appeal, 82 Pa. St. 169. Frequently, it has been said that “relationship, either by consanguinity or affinity,is a fact which tends to rebut the presumption which the law raises, that a promise to pay is intended when personal services are rendered. But, alone, it does not overcome that presumption except in the case of parent and child. In all other cases there must be evidence beyond the relationship that the creation of no debt was intended.” The nearer the relationship the less expectation of payment, and greater strictness of pi’oof to overcome the presumption. And when the parties are members of the same family the relationship excludes the implication of a promise. An instance of such exclusion is Duffey v. Duffey, 41 Pa. St. 399.

Between parent and child the rule is, that there can be no recovery for service, boarding, or the like, in the absence of an express contract to pay therefor. The degree of proof to establish it cannot be the same in all cases. Nor is a contract for the payment of money for services or goods, subject to the same rules respecting its proof as are applied to oral contracts for the conveyance or devise of land by a father to his son, as was the case in Harris v. Richey, 56 Pa. St. 395. When a son continues in his father’s family and service after his majority, as before, he cannot recover wages, unless there be direct, clear and positive proof of an express contract. But there it has not been held essential that a witness was present with the parties face to face and heard their bargain. However, the circumstances require much stronger proof to establish a contract, than when the son had left his father’s home, had done business for himself for years, and the father requested his return, care and service. In one case the circumstances are opposed to the idea of a contract, in the other they are corroborative of the father’s declarations to third persons that he promised his son to pay him.

The question always is, whether the parties contemplated payment and dealt with each other as debtor and creditor. A son who takes his decrepit parents into his house and supports them, is presumed to do so from the promptings of natural affection; no contract is implied. But if the father, before they go and afterward, repeatedly declares that he was to pay for their board, such declarations are evidence, and with the circumstances may be so direct and strong as to compel belief that he expressly agreed to pay for it. Loose declarations made to the son or others will not answer. That which may be only the expression of an intention to compensate is not evidence of an agreement to compensate. If he intended 'to pay and often said so to others, he was not bound. It must appear that he purposed to assume a legal obligation, capable of being enforced against him. A mother made a visit to her son in a distant state, remained some months and died there. She said that she intended to pay what was right for her boarding. It was held that “ there is nothing like evidence of a contract in that Lynn v. Lynn, 29 Pa. St. 369. Had she said that before she went she had agreed to pay him for her boarding, there would have been evidence of a contract, and its sufficiency would have depended upon the proof of circumstances.

A contract to pay for services or boarding may be express and binding, without all the terms being defined. The gist is an actual agreement to.pay, and if the sum be not expressed it will be implied to be the value. A contract of this kind should not be confounded with a parol contract for sale of land.

On April 1st 1872, Adam Miller and 1ns wife went to live with their son George and remained with him during their respective lives. The mother died in December 1876, aged seventy-eight years, and the father in 1879, aged over eighty years. Before going to George’s they had lived in a house of their own' — their daughters had married and left them alone. The father was feeble, unable to cut his wood, and required some one to attend to him. His wife was able to do but little. One witness testified, “ I knew old Mr. Miller. I had a conversation with him before he moved to George’s. He says, ‘ I am moving to George’s.’ Says I, ‘How is that?’ He says, ‘ I might as well move there as hire somebody to take care of me and the old woman.’” Another witness who lived at George Miller’s in 1872, testifies that soon after Adam Miller and his wife came there, he told her that he had it better here than when he lived by himself, had no care on his mind, and all he had to do, he said, “ I have to pay our boarding. ’’ Numerous witnesses testify to his declarations at different times, “that he paid for his boarding, ” “ that he was paying for his boarding, ” “we are paying our boarding,” under circumstances showing that he was well aware of what he was saying. The evidence is convincing that Adam Miller expressly contracted to pay for tlie board of himself and wife, that George kindly and faithfully performed his part, and that the amount claimed is reasonable and justly due. This appears to be a meritorious claim which ought not to be defeated by application of any principle found necessary to protect estates of decedents from false demands.

The learned and able auditor found that there was'a contract by George to board his father and mother for the interest on a note for $900 and the services of the mother. That there was an actual contract is scarcely denied, and the exceptants were allowed to prove the declaration of Adam Miller, in absence of George, that the interest of the note was what he paid for the board. His declarations tending to establish a contract were proved; it wras not competent for those claiming under him to prove other declarations of a contract more favorable to himself. All the declarations agree that there was a contract; those proved by appellant show a liability for the value of the boarding, and those by the appellees, a liability for less than onefourfch the value. It is fallacious to say that the latter were admissible, because the party made them against his interest; and the second and third specifications of error are sustained.

The findings of fact by the auditor, approved by the court below, are entitled to great weight and rarely are reversed. From the auditor’s citation of authorities and reasoning, it is clear that if we agreed with him respecting the law of the evidence, we would, also, in his conclusion.

Decree reversed, exceptions to the administrator’s account dismissed and said account confirmed, and record remitted for further proceeding. Appellees to pay the costs of this appeal.