Greenwell v. Greenwell

The. opinion of the court was delivered by.

Valentine) J.:

This was an action brought by Robert Greenwell against Dorcas Greenwell, for compensation for boarding the defendant and washing for her for twelve years, fro’m January 1, 1867, up to January 1, 1880, at the rate of $75 per year, amounting to $900.

The defendant answered the plaintiff’s petition, denying generally the allegations of the plaintiff’s petition; also setting up the three-years statute of limitations, and also setting forth that she was the mother of the plaintiff, and that during the • time for which he claims compensation for hoarding and washing, she lived with him as a part of his family, without any agreement, contract, promise or understanding that she should pay anything for her board or washing; that during the time that she so lived with him, she performed services for her son, and that neither intended to charge the other for anything done or performed by the one for the other.

The case was tried before the court and a jury, and the defendant’s evidence would seem to sustain her view of the case, while the plaintiff’s evidence would scarcely contradict it. The court gave general instructions to the jury, as well as special’instructions asked for by the parties. The plaintiff asked the court to give the following special instruction:

“1. If the jury find from the evidence that the defendant has lived in the family of the plaintiff and has had her boarding and washing done and furnished by the plaintiff and his family, and that there was no contract or agreement between the plaintiff and defendant, and as to how much defendant should pay plaintiff for said boarding and washing, then I charge you that the law is, that there was an implied contract *679 that the defendant was to pay plaintiff what said boarding and washing were reasonably worth for the time said defendant so boarded at plaintiff’s house; and you will so find for plaintiff such reasonable compensation not to exceed the amount claimed in plaintiff’s petition.”

The court gave this instruction to the jury, but modified the same by adding the following thereto, to wit:

“The rule above applies, unless the jury find from the ■evidence that defendant lived with her son as a part of his family.”

The plaintiff duly excepted to the modification.

The defendant asked the court to give the following instructions :

“1. If the jury find from the evidence that the defendant is the mother of the plaintiff, and for the time mentioned in plaintiff’s petition the defendant lived with the plaintiff as ■one of his family, assisting in performing the ordinary duties of the household, and there was no express contract that the defendant was to pay for her board and washing, and no ■understanding by either party that such board and washing were to be paid for, then I charge that as between mother ■and son there is no implied promise to pay for such board and washing, and the plaintiff cannot recover in this case.'

“ 2. I charge you that if you find from the evidence that the defendant did not promise in writing to pay the plaintiff for the board and washing mentioned in plaintiff’s petition, then I charge you that the value of each' year’s board and washing would be barred by the statute of limitations in three years from the time such board and washing became due, and the plaintiff cannot recover for those years.”

This was modified by the court, by adding the following:

“The jury will find from the evidence whether the board became due at the end of each year,

“3. I charge you that a gift from the defendant to the plaintiff of money or property cannot be applied on an account to take it out of the statute of limitations.5’

The plaintiff duly excepted to the^ instructions.

The jury found a verdict in favor of the defendant and against the plaintiff, and the court below rendered judgment .accordingly; and the plaintiff now brings the case to this *680 court, and asks that the judgment of the court below be reversed.

The plaintiff claims in this court that the court below committed material and substantial error in giving the instructions above quoted. We think, however, that the instructions-are right, and that they fairly come within the principle enunciated in the case of Ayres v. Hull, 5 Kas. 419 . See-also, authorities cited in briefs of'counsel.

In addition to the facts already stated, we would mention that the plaintiff’s mother has been a widow for more than-twenty years, and that during this time she has lived with her children, several of whom reside in Kansas; that she is-very old and feeble, and not able to perform very much work; but still, during the time that she lived with the-plaintiff, she assisted, so far as she could, in the ordinary household duties; and there was no understanding on the part of either that either should receive any other or additional compensation from the other. For the last two years-the relations existing between the plaintiff and his mother-have not been very pleasant. They have not been the best of friends; and hence this and other litigation between them. (Greenwell v. Greenwell, 26 Kas. 530 ; Greenwell v. Greenwell, ante, p. 413.)

The judgment of the court below will be affirmed.

All the Justices concurring.