Smith v. Riedele

WORKS, J.

In this action plaintiff sued to recover for personal services rendered to defendant, relying for a recovery upon an implied promise of defendant to pay. The services were varied in their nature and many of them were performed about the house and grounds of respondent. Upon a motion for a nonsuit the trial court determined that plaintiff’s evidence was barren of a showing of an implied promise. The motion for a nonsuit was granted and judgment went for defendant accordingly. Plaintiff appeals.

Appellant was the only witness at the trial. His testimony showed the rendition by him of various services for respondent, it is true, these items of performance on his part extending over a period between eight and nine years in extent, but respondent contends that under all the circumstances disclosed by the testimony the trial court was justified in determining that there was no implied promise to pay. In this view we are bound to concur. During the entire period mentioned, between eight and nine years, appellant resided in the household of respondent. Not only did he have a room in the family residence, but he ate his

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meals at the family table. When there were guests at the table he usually sat with them. He made no payment whatever, during all of this period, for either room or board. On various occasions respondent furnished appellant with clothing. The two sometimes fished together and when they did appellant used tackle bought by respondent. The latter paid for appellant’s fishing license, on one occasion at least, and perhaps more, as the evidence on the subject is not clear. During these years respondent frequently gave money to appellant, the total sum so disbursed being over four hundred dollars, but it was neither given nor received as compensation for any service, being a pure gratuity. Appellant had some money from other sources, as his testimony discloses that he was under at least one outside employment during the period of his residence with respondent. The evidence does not show how long this employment lasted, but it was with a corporation in which respondent was interested. At the end of the period which we have twice mentioned the relationship which had existed between the parties was terminated and appellant left respondent’s home. The evidence discloses no reason for the severance, but it was then, for the first time, that appellant made claim that respondent was indebted to him for services.