Riley v. Mitchell

Gilfillan, C. J.

The jury had a right, in their discretion, to render a general or special verdict. Gen. St. 1878, c. 66, § 236. But the refusal of the court to send the case to the jury for a general verdict, or instruct them that they were at liberty to render one if they thought proper, would have been without prejudice, had the special findings fully and clearly covered all the issues in the case; for in that event the judgment would have followed the special findings, whatever the general verdict might have been. The special findings, however, do not fully cover the case.

While it may be true that a married woman will not, solely by virtue of the provisions in Gen. St. 1878, c. 69, § 1, be entitled to moneys due from boarders or others, earned by her in and about the keeping and management of the family household, there can be no doubt that, under section é, same chapter, she may become entitled to receive the same by virtue of a contract between herself and her husband. We do not mean by this that they may stipulate for a pe *5 cuniary compensation to be paid by one to the other for performing the duties that pertain to the relation, such as caring for and managing the family, and the household of the family, but confine the proposition to services rendered to others, and compensation from others for such services. The first and third findings by the jury are that plaintiff rendered to Fawcett, during his life, services as nurse, for which compensation should be made. We understand, and think the jury intended, that for these services compensation ought to be made in addition to the price paid to plaintiff’s husband for Fawcett’s board. The fifth finding is that there was a distinct understanding between plaintiff and her husband that she was to receive this compensation. This understanding, of course, could not create nor affect any liability on the part of Fawcett to pay for the services. But, assuming that such liability was incurred, that the services were rendered under such circumstances as raised the implication of a promise to pay for them, then the agreement between plaintiff and her husband might fix the ownership of the claim to compensation, just as an assignment after the claim accrued might. If there was a liability to pay for the services, (in addition to the price paid for board,) then (there being no question of set-off or counterclaim) it was immaterial that Fawcett did not know of the understanding by which the claim was to belong to plaintiff, and that he did not know that she (instead of the husband) expected to receive the pay; so that the sixth, seventh, eighth, and ninth findings were immaterial.

The facts found which are material are not sufficient to base a judgment on, so that there must be a new trial.

Order reversed.