DocketNumber: No. 4092
Citation Numbers: 28 Wash. 52, 68 P. 352, 1902 Wash. LEXIS 455
Judges: Hadley
Filed Date: 3/21/1902
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered by
— Appellant and respondent are brother and sister. Appellant is some years older than respondent. Their father died when respondent was about sixteen years of age. Eor some years previous to his death the father was ill and unable to superintend his farm, and appellant took entire charge of the farm from the time he was about sixteen years of age. Some time before the death of the father he transferred the farm to the appellant by deed, and also gave him personal property connected with the farm. After the death of the father the family consisted of appellant, respondent, and their mother. Respondent lived with appellant and her mother as a member' of the family from the time her father died
“I told him I was twenty-one now, and I would have to go out and look out for myself; that I would have to look around to earn my living; and he wanted me to go on there and do the work just the same as I had, and he would make it all right with me if I would stay; and I did so, and I took his word that he would do it. He said to me to go on and do the work just the same as I had been doing, and he would make it all right with me; he would pay me for my work. There was no certain time,- — no date set when he was to pay me.”
In the course of her testimony, respondent also testified to other conversations between herself and appellant when the subject of compensation for her work was mentioned. There was other testimony to the effect that appellant said in the presence of respondent that she would be paid for all she was doing. One witness also testified to a conversation between himself and appellant when respondent was not present, as follow’s:
“We were right there, — raised there, boys together; and I was telling him how his sister worked to help him along and what a good girl she was, and he said, ‘Yes, there never was a better in the world; and I calculate to do what is right by Emma and pay her for her work.’ ”
It is assigned as error that the court sustained the demurrer of respondent to appellant’s plea of the statute of limitations, and admitted testimony as to services rendered prior to three years before the commencement of the action. This assignment raises the question of the application of the statute of limitations to a contract of employment for an indefinite time, when no time for payment has been specified. We are aware that there is conflict of authority upon this subject, and the authorities cited by appellant are to the effect that, if the hiring can be regarded from year to year, the sendees for each year* should be treated as a separate item and the statute applied accordingly, or, if there is anything to malee it appear that the hiring may have been from month to month, each month should be so
“We think that the contract, of service was a continuous one, and that the statute of limitations did not begin to run until the completion of the service.”
The authorities there cited sustain the rule announced, and are as follows: Carter v. Carter, 36 Mich. 207; Grave v. Pemberton, 3 Ind. App. 11 (29 N. E. 177) ; Knight v. Knight, 6 Ind. App. 268 (33 N. E. 456); Taggart v. Tevanny, 1 Ind. App. 339 (27 N. E. 511).
In addition to the above^ respondent cites Jackson v. Mull, 6 Wyo. 55 (42 Pac. 603), which is also- in point. The rule having been announced in Ah How v. Furth, supra, and being sustained by authority, we do not deem it wise to depart therefrom. The contract alleged in this case was for an indefinite time, and no. time of payment was specified. The services were therefore continuous, within the above rule, and the statute did not begin to run until the services ended. The. court therefore did not err in overruling the demurrer and in admitting the testimony.
It is next assigned that the court erred in permitting respondent to amend her complaint at the close of the testimony. Immediately after the close of the testimony the following occurred:
*59 “Mr. Allen: If your honor please, plaintiff asks leave of court to- amend her complaint hy adding to paragraph 1 the following: Tor which said work and labor the defendant promised and agreed to pay the plaintiff, which said promise was made prior to plaintiff performing said work and labor.’ That said amendment simply conforms to the proof introduced in this case.”
Appellant objected to the amendment being made, but the eouil permitted it, and appellant thereupon excepted. In Hulbertv. Brackett, 8 Wash. 438 (36 Pac. 264), an application was made to- amend the complaint during the introduction of the testimony. The court held that it was within the discretion of the trial, court to permit the amendment; that no different answer was required,.and the defendant was in no way taken by surprise. In this case appellant’s answer already filed negatived specifically the truth of the matters set up in the amendment, and evidence upon both sides had been directed to that issue. There could have been no surprise. The most that appellant could have asked would have been for time to introduce further testimony, which was not done. To the same effect are McDonough v. Great Northern Ry. Co., 15 Wash. 244 (46 Pac. 334), and Allend v. Spokane Falls & Northern Ry. Co., 21 Wash. 324 (58 Pac. 244). The court did not commit error in permitting the amendment under the circumstances.
It is assigned as error that the court refused to permit respondent to answer on cross-examination whether the work she did by way of milking cows while a renter had charge of them was voluntary on her part, and not-required hy appellant. We think it was not material. She had already testified that the renter was supposed to do the milking. The following had appeared in her examination :
*60 “Question: He was supposed to do the milking, was he not? Answer: The renter? Q. Yes, the renter. A. Yes, sir. Q. You would go there voluntarily and help him milk? A. When I didn’t have anything else to dó-, I would go and help, milk.”
We think it had already sufficiently appeared that at such times as she was milking cows which were under the renter’s charge she was not working for appellant, or upon his request. The point, must have been sufficiently clear to the jury without further examination on that line, and we think the court did not err in excluding the further testimony sought.
It is assigned as error that the court instructed the jury to the effect that it is not necessary, in order that respondent may recover, that she shall show an expressed promise to pay for the services, but that it is sufficient for her to show from facts and circumstances that there was an understanding and agreement. One instruction, which, in substance, embodies the above statement of law, concludes as follows: “She may show an implied promise on the part of the defendant to pay for such services.” It is urged that the instruction, in effect, told the jury that no agreement or understanding was necessary, and that she could recover upon an implied contract in law following from the mere fact that the services were rendered. The court did not say, however, that no contract or understanding is necessary, hut that no “expressed promise to pay” is necessary, if from facts and circumstances it is shown that there was an agreement. The first quoted words above do Hot say that she can recover upon a mere implied contract, hut that she may “show an implied promise.” The reasonable interpretation of the words, when considered in connection with the entire instruction, together with others given, is that she may show facts and circumstances
The rule recognized in the above cases clearly appears in the following from the"opinion in Murrell v. Studstill, supra, at page 751 (104 Ga. 608).
“The services rendered by the plaintiff in error in this case were not only such as a grandchild would naturally render from love and affection in waiting upon an infirm, old grandparent, but she also performed the services of a common servant, in cooking, washing, and doing labor in the field. By such services she saved the grandparent expenses that he would otherwise have had to incur in the employment of labor, and thus enhanced the value of his estate. While there was no express contract proved, yet there was enough in this case to submit it to the jury, and to leave it to tlris tribunal to determine, in the language of this court in the case of Hudson v. Hudson, above cited, whether or not the surrounding circumstances revealed by the evidence ‘plainly indicate that it was. the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of this relation’ of grandparent and grandchild.’’
Also in Dash v. Inabinet, supra, at page 298 (53 S. C. 386) of the opinion, as follows:
*63 “In tliis case, it is very apparent that there was no direct and positive testimony of any agreement between plaintiff and intestate as to compensating, her for her services ; for when the plaintiff was asked whether there was any such understanding with her father, the question was objected to, and very properly ruled incompetent, under section 400 of the Code. The plaintiff was, therefore, forced to rely on such other circumstances as sho was able to prove, from which the jury might infer that there was an agreement for compensation. It will be observed that we use the word ‘might’, and not the word ‘should’, for it is not for us to say what inference the jury should draw from the testimony, but only to determine whether there was any testimony from which the jury might infer that there was a contract. Without discussing the testimony above stated, or indicating any views which might be taken of it, or suggesting any inferences that might be drawn from it, as that might prove prejudicial to one or the other of the parties, it is sufficient for us to say, that there was testimony from which the jury might infer that there was a contract; but. whether the testimony was sufficient to warrant such an inference, we have neither the power nor the disposition to say; and we must not be regarded as expressing, or even intimating, any opinion whatever as to the sufficiency of the evidence, as that is a matter exclusively for the jury.”
We believe the rule above stated is wholesome and just, and we shall adopt it here. The court’s instructions were in harmony therewith, and we think there was no error therein which could have misled the jury. There was evidence in this case of a direct promise to pay, which was, however, denied by appellant. It- therefore became the • duty of the court to submit the question to the jury whether it was the understanding between the parties that the services were not being gratuitously rendered, and in determining that matter it was proper for them to consider the relations, conversations, and conduct of the respective
We think the court did not err, and the judgment is affirmed.
Reavis, C. J., and Fullerton, White, Dunbar, Anders and Mount, JJ., concur.
Allerton v. Allerton , 133 Wash. 260 ( 1925 )
Leroux v. Edwards , 32 Wash. 2d 35 ( 1948 )
Gensman v. West Coast Power Co. , 3 Wash. 2d 404 ( 1940 )
Johnston v. Johnston , 182 Wash. 573 ( 1935 )
Mendoza v. Gomes , 143 Cal. App. 2d 172 ( 1956 )
Mayborne v. Citizens Trust & Savings Bank , 46 Cal. App. 178 ( 1920 )