Lunay v. Vantyne

40 Vt. 501

• Court: Supreme Court of Vermont
• Decided: January 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

Steele, J.

1. The defendant’s wife was permitted to testify to matters which the auditor finds were transacted by her, as agent of her husband. The plaintiff claims, that she should have been excluded because these transactions occurred at the defendant’s house, and “ he might have known in relation to them.” It would, of course, be less probable that affairs would be left to the control and management of the wife, when the husband is at home, than when he is away from home. But it is by no means certain that he attended to the business himself, because he might have done so. The proof that the husband was at home is not decisive of the question of the 'wife’s agency. It is merely evidence upon that subject. The auditor, .upon the whole evidence, expressly finds that these matters, and the charges which relate to them, were left solely to the charge of the wife. This finding is conclusive of her relation, as agent, and consequent competency to testify under the statute.

2. The plaintiff was an adopted daughter of the defendant. Until the time when she understood that she became of age, she worked in the defendant’s service with no agreement or expectation that she was to be paid for her labor, but simply in recognition of the duties of her relation to the defendant, as his adopted daughter. After it was understood she was of age, the defendant agreed to pay her fob her labor. Subsequent to this agreement, she met the physician who officiated at her birth, and ascertained that she and her foster parents had been mistaken one year in her age; that she, in fact, arrived at her majority one year earlier than she had supposed, and consequently had been in the defendant’s service for one year, after she became of age, without pay, and without any agreement or expectation of payment. She now claims to recover pay for that year’s work, and the question is, whether the law will imply a promise or contract to pay her.

When one party has rendered to another valuable services or delivered goods, a promise to pay for them will usually be implied. It is implied from the understanding of the parties, not against it. If it appears that the parties understood at the time that the services or goods were gratuitous no liability to pay for them can be implied. An implied promise cannot be raised contrary to an express understanding. It is settled that if a child after becoming of age remains in the parent’s service the law will imply no promise on the part of the parent to pay for the labor, but an express promise must be proved. Fitch v. Peckham, 16 Vt. 150; Andrus v. Foster, 17 Vt. 556. The reason is that the child’s merely continuing to reside at home and to labor as before, creates no natural presumption or evidence that he has assumed the relation of servant or any other new relation. In the application of this rule, there can, of course, be no distinction between adopted children and other children. That the parties did not know she was of age, only renders it the more certain that there was no understanding that her services were to be paid for. The fact that the parties probably would have made a contract, if it had not been for this mistake, does not enable the’ court to presume or decide that they did make one'. The office of the law is to interpret and enforce contracts. The parties only have authority to make them. The finding’of the auditor that the defendant expected-to pay the plaintiff for her work after she became of age, is stated to be based solely upon the fact that he did pay her after he understood she was of age. This finding cannot justify us in implying a promise to pay for the service which, it is expressly found, was rendered and received without expectation of payment.

The result is, that the judgment of the county court is reversed, and judgment is rendered for the defendant upon the alternative named in the report of the wife’s being held a competent witness, and tjje year’s work disallowed, for eighteen dollars and eighty-nine cents and interest.