Fehlhafer v. Reiners

157 N.W. 1058, 37 S.D. 289, 1916 S.D. LEXIS 56

• Court: South Dakota Supreme Court
• Decided: May 27, 1916
• Docket: File No. 3926
• Status: Published

Opinion

WHITING, J.

Judgment for jolaiiutiFf, a minor, on quantum meruit-for .services 'rendered defendant. Appeal from the jud’g-inent: and from- an order refusing a new trial.

It is the claim of appellant that the services were rendered úridér a contract entered into' between appellant and plaintiff’s father,' Respondent contends that he, having been emancipated by íxis. father, entered into a contract with appellant, under which ■he...performed the admitted 'services. The trial court instructed the-.jury. that before respondent could recover “he must show that prior to rendering the services alleged he had been emancipated, by his father, and, unless you find from the evidences that he' was so emancipated, he cannot maintain this action, and your verdict must be for the defendant.” The trial court also instructed the jury to the effect that before respondent could recover he must show that the services were not mere voluntar)'' services, but •that they were rendered under “an agreement, express or implied, íó pay for such services, or unless the services were rendered at the request of the defendant or -with his assent under such circumstances as ten raise -a presumption that the minor expected pay for such services, and that the defendant expected to' pay the plaintiff therefor.”

[1] Appellant moved for a directed verdict and assigns as error - the overruling of such motion., ITe also assigns the insufficiency of the evidence to support the verdict. It does riot appear by any statement in his brief that such 'brief contains dll,the evidence material to' the presentation of such, assignments. Chapter 172, Laws 1913; Supreme Court rule 6 (140 N. W. viii); Gilfillan v. Schaller, 32 S. D. 638, 144 N. W. 133; Peterson v. Miller, 33 S. D. 397, 146 N. W. 585. It will therefore be presumed that every fact necessary to sustain a verdict under the above instructions was fully established - iby the evidence. That being true, neither of the above assignments are supported -by -the printed record1.

Appellant assigns as error the refusal of the trial court to give -certain instructions requested and the -giving of -certain instructions-. The instructions given were-, if anything, mo-re favorable to appellant than they should have been. Neither the instructions excepted- to nor th-o-se refused present any question of law of sufficient importance to merit consideration.

[2] Respondent, seeking recovery on quantum, meru-it, introduced evidence to p-ro-ve an express contract as well as evidence to -prove value of services rendered. Appellant -moved for a new trial -on ground of surprise, alleging that h-e had no notice that respondent would -claim- that there was an express- -contract and had not prepared to- meet proof thereof. Appellant assigns as error the refu-sal to- grant such, motion-. There is- n-o- merit in this assignment. The evidence was -competent if the trial -court was correct in ruling that respondent must show his- services not to have been voluntary. If such- burden was not on respondent then proof of suoh- express contract was absolutely immaterial, and -could not 'have been prejudicial t-o- appellant. Most of s-uch evidence was introduced without objection. 'Such objections as were interposed wore insufficient to- present the question- now raised.

[3] Appellant -contends that, -inasmuch as the verdict for services rendered during a period of some three years was for an amount -equal to the value of that which respondent claims he was to receive for some eight years services; under the express contract, the verdict m-us-t have been the -result of prejudice and passion •on the part of the jury. Appellant seems- to lose sight of the fact that the express contract was made -with one who was not bound thereby. The reasonableness of the verdict i-s to- be determined by the -proof of the value -o-f the services rendered', and- not by what this minor had agreed to receive for same. We must presume the proof ample to support s-u-ch verdict.

•There are no- -other assignments meriting our consideration.

The judgment- and order appealed from are affirmed.