Murdock v. Murdock

Burnett, J., after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.

There is, perhaps, no class of cases, assumed to be based upon implied contracts, that has more embarrassed Courts and juries, than cases arising between relations. These cases are always unfortunate, and from the delicacy of the relationship existing among the parties, it is often extremely difficult to arrive at their true intentions. There is so great a variety in the circumstances of different cases, that it is difficult to lay down general rules. Still, I think some rules may be established.

In the case of Andrews v. Foster, 17 Vt. R., 560, it was held that it was incumbent upon the plaintiff “to show that at the time, it was expected by both parties that he should receive such compensation, or that the circumstances under which the services were performed, were such that such expectation was reasonable and natural.” It was also held in that case “ that the law in such cases will not ordinarily imply a promise ” on the part of either party.

■ But the Courts of Mew York have gone further, and require either an express contract, or an expectation on both sides, that compensation should be made. In the case of Williams v. Hutchinson, 5 Barbour, 122, it was held that, if an individual does, in fact, support his step-child as a member of his family, standing in loco parentis to him, the law does not imply a promise on his part to pay for the services of the child, nor will it permit a recovery therefor, unless an express promise is shown, or something to prove that compensation was expected on both sides. “ The family relation, or compact, is not that of service on the one hand, or protection and support on the other, for pecuniary reward.” The same doctrine is laid down in the case of Dye v. Kerr, 15 Barbour, 444.

So the same doctrine is sustained in the case of Defranc v. Austin, 9 Penn. Rep., 310. The Court was requested to charge the jury, that under the evidence, the plaintiff could not recover. But the Court left it to the jury, to determine the value of his labor, beyond his boarding, schooling, and clothing, and that amount they might find for the plaintiff, upon an implied contract, although they they were satisfied that the parties had no agreement. To this instruction we cannot accede. It was ruled in Juives v. Parsons, 5 M. & S., 357, “that the performance of labor generally, by one for another, raises an implied assumpsit that will be compensated •, but this implication may be rebutted by proof of circumstances showing such a relation between the parties as repels the idea of contract.” Burnside, Justice.

In cases where an express contract can be shown, there can