Hays, J.
Claimants filed a claim against decedent’s estate for services rendered to decedent and ask for the reasonable value thereof. Defendant-administrator by answer asserts that the services were rendered pursuant to a contract and have been fully paid for; also, that due to a family relationship they were gratuitous. By reply both defenses were denied. The claim was allowed by a jury and the administrator appeals.
Appellant asserts error in the instructions given on both issues, to wit, payment under specific contract, and the family relationship. Appellees assert that there is no showing of a family relationship. No issue is presented as to the rendition of the services nor as to the reasonable value thereof.
The facts are not in dispute. Decedent (Mike Klepper) died in November 1950 at the age of seventy-eight. His wife died in 1942. He is survived by sis children, all adults, including the claimant Henry Klepper. After the death o‘f his wife, Mike Klepper continued to reside on his two-hundred-acre farm. Le-Roy, an adult unmarried son, lived at home with him and helped with the farming. They had a housekeeper. In 1945 LeRoy [524]*524rented the farm on a fifty-fifty basis. His father furnished the necessary farm machinery and paid all of the living expenses, including those for a housekeeper. In April 1945 Mike Klepper suffered .a stroke which left him unable to work but able to be up and around and to take care of himself. Thereafter Dora Kisch, a daughter, managed her father’s affairs, collecting the rents from LeRoy and paying the household bills.
In September 1945 a family conference was held, attended by the six children and Mike Klepper. The purpose thereof was to arrange a plan whereby Mike Klepper could continue to live on the home farm and to reduce the expenses, particularly as to the housekeeper. LeRoy had offered to remain as a tenant and pay one half of the household expenses, including those of the housekeeper. At least part of the family wanted him to pay all of the expenses and to purchase a half interest in the machinery. This LeRoy refused to do.
Henry Klepper, claimant, was at the time forty-eight years of age, married and living with his family on a neighboring farm. He had left his father’s home in 1927 at the time of his marriage. At this family conference and after LeRoy had refused to continue on as a tenant, Henry agreed to lease the farm for the following year. A written lease was entered into, signed by Dora Kisch on behalf of her father. It provided in part as follows:
“Farmed on a 50/50 basis; all income and expense in connection with the operation of this farm will be shared on the 50/50 basis; party of the first part will keep his machinery on the said premises for the use of the second party, the party of the second part will furnish what machinery he now owns, ownership of the said machinery shall remain in the parties as furnished. Party of the first part will reside with the party of the second part, without any further charges whatsoever.”
Pursuant to the lease, Henry Klepper and his family moved onto the farm and into his father’s house in March 1946. In June 1946 Mike Klepper suffered a second stroke which left him a helpless invalid, requiring the care and attention- of an infant. In the fall of 1946 a new lease was executed similar to the first [525]*525one except for the following clause, “In the event that the party of the first part should die before the first day of March 1947, there would be a sale of the items he owns.” A similar lease, except as to the dates, was made in the fall of 1947. Thereafter, until decedent’s death in November 1950, the tenancy was continued under the terms of the last lease. About a year and a half prior to decedent’s death Henry Klepper talked with Dora Kisch concerning pay for care furnished the father.
I. As to the defense of a “family relationship” — At the close of the testimony appellees moved to strike this defense due to a lack of proof to sustain it. This motion was overruled and the same was submitted to the jury. In submitting the same to the jury the court said in Instruction No. 5, “Such relationship imposes mutual duties and responsibilities upon the parties involved, and implies on the part of the one receiving services a duty to return services fairly proportional to those received.” Error thereto is alleged in that it in effect tells the jury that it cannot find a family relationship exists, since under the undisputed testimony the decedent was a helpless invalid and wholly incapable of reciprocating. That the instruction should have been qualified by the word “generally” or “usually” as reciprocal services is not absolutely essential to such a relationship. While such a qualification might properly have been given, we think the instruction correctly states the rule of law as expressed by this court. We said in In re Estate of Talty, 232 Iowa 280, 287, 5 N.W.2d 584, 588, 144 A. L. R. 859:
“The services rendered by appellant for Thomas were entirely disproportionate to what little work the latter was able to do. Reciprocal services were neither exacted nor performed, nor was decedent mentally or physically capable of rendering such services. The presumption of gratuity due to the family relation arises because of the reciprocal character of family duties and services.”
Error is also predicated upon the giving of Instructions Nos. 7 and 11. In No. 7 the jury was told that if a family relationship was shown to exist, then claimants in order to recover must show “(3) That there was an express agreement by which decedent was to pay for such services, or that such services were [526]*526rendered with the expectation on the part of claimants to receive pay therefor, and * * * of decedent to pay.” Instruction No. 11 amplifies the above-quoted part of No. 7. As an abstract legal proposition the instruction is correct. However, the alleged error is that there was no pleading or proof of an express contract and that to submit such to the jury constitutes error. This also is true as an abstract legal proposition, Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507, but it does not necessarily constitute prejudicial error, Wilson v. Else, 204 Iowa 857, 216 N.W. 33.
Conceding that the above instructions are erroneous under the instant record, were they prejudicial to appellant? We think not.
The question of a “family relationship” in cases of the type now before us has been considered many times by this court. The ordinary rule is that where one person performs services for another which are known to and accepted by him the law implies a promise to pay. Hopkins v. Convy, 191 Iowa 402, 404, 182 N.W. 225, 226; In re Estate of Beck, 239 Iowa 655, 656, 32 N.W.2d 217, 218. However, where it is shown that the person rendering the service is a member of the family of the person served and receiving support therein, either as a child, a relative or a visitor, a presumption of law arises that such services were gratuitous. Scully v. Scully, 28 Iowa 548; Marietta v. Marietta, 90 Iowa 201, 57 N.W. 708; In re Estate of Bishop, 130 Iowa 250, 106 N. W. 637; Snyder v. Nixon, 188 Iowa 779, 176 N.W. 808; In re Estate of Larsen, 235 Iowa 57, 15 N.W.2d 919.
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Hays, J.
Claimants filed a claim against decedent’s estate for services rendered to decedent and ask for the reasonable value thereof. Defendant-administrator by answer asserts that the services were rendered pursuant to a contract and have been fully paid for; also, that due to a family relationship they were gratuitous. By reply both defenses were denied. The claim was allowed by a jury and the administrator appeals.
Appellant asserts error in the instructions given on both issues, to wit, payment under specific contract, and the family relationship. Appellees assert that there is no showing of a family relationship. No issue is presented as to the rendition of the services nor as to the reasonable value thereof.
The facts are not in dispute. Decedent (Mike Klepper) died in November 1950 at the age of seventy-eight. His wife died in 1942. He is survived by sis children, all adults, including the claimant Henry Klepper. After the death o‘f his wife, Mike Klepper continued to reside on his two-hundred-acre farm. Le-Roy, an adult unmarried son, lived at home with him and helped with the farming. They had a housekeeper. In 1945 LeRoy [524]*524rented the farm on a fifty-fifty basis. His father furnished the necessary farm machinery and paid all of the living expenses, including those for a housekeeper. In April 1945 Mike Klepper suffered .a stroke which left him unable to work but able to be up and around and to take care of himself. Thereafter Dora Kisch, a daughter, managed her father’s affairs, collecting the rents from LeRoy and paying the household bills.
In September 1945 a family conference was held, attended by the six children and Mike Klepper. The purpose thereof was to arrange a plan whereby Mike Klepper could continue to live on the home farm and to reduce the expenses, particularly as to the housekeeper. LeRoy had offered to remain as a tenant and pay one half of the household expenses, including those of the housekeeper. At least part of the family wanted him to pay all of the expenses and to purchase a half interest in the machinery. This LeRoy refused to do.
Henry Klepper, claimant, was at the time forty-eight years of age, married and living with his family on a neighboring farm. He had left his father’s home in 1927 at the time of his marriage. At this family conference and after LeRoy had refused to continue on as a tenant, Henry agreed to lease the farm for the following year. A written lease was entered into, signed by Dora Kisch on behalf of her father. It provided in part as follows:
“Farmed on a 50/50 basis; all income and expense in connection with the operation of this farm will be shared on the 50/50 basis; party of the first part will keep his machinery on the said premises for the use of the second party, the party of the second part will furnish what machinery he now owns, ownership of the said machinery shall remain in the parties as furnished. Party of the first part will reside with the party of the second part, without any further charges whatsoever.”
Pursuant to the lease, Henry Klepper and his family moved onto the farm and into his father’s house in March 1946. In June 1946 Mike Klepper suffered a second stroke which left him a helpless invalid, requiring the care and attention- of an infant. In the fall of 1946 a new lease was executed similar to the first [525]*525one except for the following clause, “In the event that the party of the first part should die before the first day of March 1947, there would be a sale of the items he owns.” A similar lease, except as to the dates, was made in the fall of 1947. Thereafter, until decedent’s death in November 1950, the tenancy was continued under the terms of the last lease. About a year and a half prior to decedent’s death Henry Klepper talked with Dora Kisch concerning pay for care furnished the father.
I. As to the defense of a “family relationship” — At the close of the testimony appellees moved to strike this defense due to a lack of proof to sustain it. This motion was overruled and the same was submitted to the jury. In submitting the same to the jury the court said in Instruction No. 5, “Such relationship imposes mutual duties and responsibilities upon the parties involved, and implies on the part of the one receiving services a duty to return services fairly proportional to those received.” Error thereto is alleged in that it in effect tells the jury that it cannot find a family relationship exists, since under the undisputed testimony the decedent was a helpless invalid and wholly incapable of reciprocating. That the instruction should have been qualified by the word “generally” or “usually” as reciprocal services is not absolutely essential to such a relationship. While such a qualification might properly have been given, we think the instruction correctly states the rule of law as expressed by this court. We said in In re Estate of Talty, 232 Iowa 280, 287, 5 N.W.2d 584, 588, 144 A. L. R. 859:
“The services rendered by appellant for Thomas were entirely disproportionate to what little work the latter was able to do. Reciprocal services were neither exacted nor performed, nor was decedent mentally or physically capable of rendering such services. The presumption of gratuity due to the family relation arises because of the reciprocal character of family duties and services.”
Error is also predicated upon the giving of Instructions Nos. 7 and 11. In No. 7 the jury was told that if a family relationship was shown to exist, then claimants in order to recover must show “(3) That there was an express agreement by which decedent was to pay for such services, or that such services were [526]*526rendered with the expectation on the part of claimants to receive pay therefor, and * * * of decedent to pay.” Instruction No. 11 amplifies the above-quoted part of No. 7. As an abstract legal proposition the instruction is correct. However, the alleged error is that there was no pleading or proof of an express contract and that to submit such to the jury constitutes error. This also is true as an abstract legal proposition, Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507, but it does not necessarily constitute prejudicial error, Wilson v. Else, 204 Iowa 857, 216 N.W. 33.
Conceding that the above instructions are erroneous under the instant record, were they prejudicial to appellant? We think not.
The question of a “family relationship” in cases of the type now before us has been considered many times by this court. The ordinary rule is that where one person performs services for another which are known to and accepted by him the law implies a promise to pay. Hopkins v. Convy, 191 Iowa 402, 404, 182 N.W. 225, 226; In re Estate of Beck, 239 Iowa 655, 656, 32 N.W.2d 217, 218. However, where it is shown that the person rendering the service is a member of the family of the person served and receiving support therein, either as a child, a relative or a visitor, a presumption of law arises that such services were gratuitous. Scully v. Scully, 28 Iowa 548; Marietta v. Marietta, 90 Iowa 201, 57 N.W. 708; In re Estate of Bishop, 130 Iowa 250, 106 N. W. 637; Snyder v. Nixon, 188 Iowa 779, 176 N.W. 808; In re Estate of Larsen, 235 Iowa 57, 15 N.W.2d 919.
A “family” has been defined to be a collection or collective body of persons who live under one roof and under one head or management. The so-called “family-relationship” rule is. an exception to the ordinary rule above-stated and must be pleaded as an affirmative defense to be proved by the pleader. In re Estate of Talty, 232 Iowa 280, 5 N.W.2d 584, 144 A. L .R. 859.
The case of Marietta v. Marietta, 90 Iowa 201, 204, 57 N.W. 708, 709, is very similar to the instant case in many respects and has been cited many times. We there said:
[527]*527“We doubt very much whether the familiar rule of the law that where a son or -daughter remains under the parental roof, and works and labors as one of the family, after arriving at the age of majority, the presumption is that the services are gratuitously rendered, applies to the facts disclosed in evidence. In the case at bar the plaintiff had gone out into the world, and ceased to be a jnember of his father’s family. He returned to his aged parents when they were unable to care for themselves. He rented the farm, and, as far as the evidence shows, he paid the rent to his father.”
See also In re Estate of Bishop, supra; Clark v. Krogh, 225 Iowa 479, 280 N.W. 635; In re Estate of Talty, supra. See also an extensive annotation in 7 A. L. R.2d 8, covering the question of a “family relationship.”
In addition to claimant Henry Klepper’s having ceased to be a member of his father’s family many years before the time material here, it is stated in the claim filed that he returned to the home place as a tenant, under the leases above-mentioned. The appellant by answer states that the services were rendered pursuant to the contract, there being a dispute however as to the extent of the' contract, which will be considered later herein. It appears without dispute that reciprocal services by decedent were impossible, due to his physical condition, with none asked for or expected, except perhaps the use of decedent’s household goods and farm machinery, as provided for in the lease. We think that under this record appellant has utterly failed to show by any standard recognized as being determinative of the “family relationship”, the existence of the same. As stated in Snyder v. Guthrie, 193 Iowa 624, 629, 187 N.W. 953, 956, 24 A. L. R. 950, “ 'when the reason for the rule ceases, the rule itself does not apply.’ ” See also Yoder v. Engelbert, 155 Iowa 515, 136 N.W. 522.
As before stated, the burden of proving this defense is upon the pleader, the' defendant in the instant case, and such proof having failed, the motion of the appellees to strike this defense should have been sustained. In allowing such defense to be considered by the jury appellant received something to which he was not entitled, and even though it was submitted [528]*528under incorrect instructions no prejudice resulted against him. In re Estate of Hill, 230 Iowa 189, 297 N.W. 278; Neyens v. Gehl, 235 Iowa 115, 15 N.W.2d 888.
II. Appellant further alleges that tbe services were rendered under the terms of the leases, above sot forth, and that there has been full payment therefor. This is based upon the clause “Party of the first part will reside with the party of the second part, without any further charges whatsoever.” He contends that said clause is clear, definite and unambiguous and that extrinsic evidence in explanation thereof is not admissible; that the meaning of the contract is a matter for the court and not for the jury. On the other hand, the appellees contend that the clause, especially the word “reside”, is susceptible of various meanings, with their interpretation being that it is here used in its usual concept of having a home where the individual eats and sleeps, to have a home; that it does not include the extraordinary services which were admittedly furnished by the appellees to the decedent.
The rule is well settled in this state that where the terms of an agreement are susceptible of different meanings, evidence as to the meaning in which it is used is proper. The court will place itself in the position of the parties who made the agreement as nearly as can be done by admitting evidence of surrounding facts and circumstances, the nature of the subject matter, the relation of the parties to the contract and the objects to be accomplished by the contract. Rapp v. Linebarger & Son, 149 Iowa 429, 128 N.W. 555; Riggs v. Gish, 201 Iowa 148, 205 N.W. 833; Carson v. Great Lakes Pipeline Co., 238 Iowa 50, 25 N.W.2d 855; Darnall v. Day, 240 Iowa 665, 37 N.W.2d 277. Under such a situation the question as to the meaning becomes a fact question for the jury, under proper instructions. Ball v. Davenport, 170 Iowa 33, 152 N.W. 69; West v. Smith, 101 U. S. 263, 25 L. Ed. 809. We think that the meaning of the clause in the lease was susceptible of two meanings, one favorable to appellant and the other favorable to appellees, in the light of the evidence bearing thereon. The jury were properly told what their decision must be, depending upon the construction they placed upon the contract. It was clearly in line with the established rule in this state.
[529]*529Finding no error, at least none prejudicial to appellant, the judgment of the trial court should be and is affirmed.— Affirmed.
SMITH, C. J., and MulROney, WenNebstbum and Olives, JJ., concur.
Gabfield, Bliss and Thompson, JJ., dissent.
Labson, J., takes no part.